Mastering The Deposition

Mastering The
Deposition
Los Angeles, CA
November 13, 2015
WWW.BRIDGEPORTCE.COM
-0-
8:30 - 9:00
Agenda
Registration & Continental Breakfast
9:00 - 9:10
Opening remarks and program overview
9:10 - 10:20
Fundamentals of Taking Depositions

Katherine Smith, Gibson, Dunn & Crutcher
How to Take an Effective Deposition for Use at Trial

10:35-11:45 Ryan McNamara, Call & Jensen
Lunch - on your own
Preparing Witnesses & Defending Depositions
12:45 - 1:45 Lauren Teukolsky, Traber & Voorhees
1:45 - 2:45
Deposing Expert Witnesses: Promoting Expertise and Limiting Exposure

James Hardin, Hardin & Associates
2:50 - 4:00
How Deposition Testimony Plays Out at Trial

Ryan McNamara, Call & Jensen
program concludes
Meet the Faculty

Katherine Smith is a partner in the Los Angeles office of Gibson, Dunn &
Crutcher. Ms. Smith practices with the firms Labor and Employment and
Litigation Departments. Ms. Smith represents and advises employers in all
aspects of labor and employment law. She has extensive experience
representing employers in single plaintiff and class action litigation.
Lauren Teukolsky has been a partner at Traber & Voorhees since 2011. Ms.
Teukolsky has litigated on behalf of plaintiffs in a wide range of cases, including
two high-profile international human rights cases against multinational oil
companies, several wage-and-hour class actions, and cases involving police
abuse, jail conditions, employment discrimination, whistleblower retaliation and
sexual harassment. Before joining Traber & Voorhees, Ms. Teukolsky was the
Pro Bono Director at Bet Tzedek Legal Services, where she oversaw all pro bono
and volunteer programs for one of the biggest providers of free legal services in
Los Angeles County.
She has taught at UCLA School of Law as an adjunct professor, and has given
dozens of presentations to lawyers and law students on public interest litigation.
Ms. Teukolsky graduated Order of the Coif from UCLA School of Law in 2000
and received her B.A. from Harvard College in 1997.
Ryan M. McNamara is a shareholder who practices in the areas of general
business litigation, ADA litigation, employment litigation, product liability, and
class actions.
Prior to joining Call & Jensen in January of 2007, Mr. McNamara enjoyed four
years as an associate at the renowned plaintiffs' litigation firm Girardi & Keese.
While at Girardi & Keese, Mr. McNamara gained valuable experience in the
areas of mass torts, premises liability, and product liability.
James Hardin is a trial lawyer who specializes in business, intellectual property,
employment, and class action litigation. He represents large corporations in
business-related matters, entrepreneurs and start ups, and individuals suffering
from a personal harm. In other words, James experience and successes are not
limited to one area of the law. Throughout his practice, James has obtained
many outstanding results for numerous defense clients and has helped secure
over $70 million in verdicts and settlements on behalf of plaintiffs in litigation.

Fundamentals of Taking Depositions

Presented for Bridgeport Continuing Education
Katherine V.A. Smith

GIBSON, DUNN & CRUTCHER LLP
PURPOSE OF A DEPOSITION
What Is the Purpose of a Deposition?
Depositions are the most potent discovery tool

available to the trial lawyer outside the courtroom
The two primary purposes for a deposition are:
1. To obtain valuable information for your case
2. To lock in and preserve testimony for trial
A party deposition
May be used for any purpose at trial by
adversary
May not be used by side affiliated with witness
unless unavailable
Seek admissions, set up impeachment, pin down
story
Pure discovery is okay
Non-party depo (witness available at trial)
May be used only to contradict or impeach

Interview or depose? It depends
Seek admissions, set up impeachment
Pure discovery is okay
Non-party depo (witness unavailable)

Initiate deposition only if expected to be favorable or
necessary to an element of proof
Trial type deposition
Pure discovery not OK go for admissions and set up
impeachment. Focus on eliciting helpful testimony.
5
Other types of depositions:

A corporate designee per Rule 30(b)(6) / CCP 2025.230
(PMK)
Party deponent that is not a natural person
Notice must describe the categories with reasonable
particularity
The corporation has the burden of designating an
individual who can testify as to those subjects on the
corporations behalf
Records custodian
Expert
6
PREPARING FOR A DEPOSITION
Decide Whom to Depose and When
FRCP 30(a)(2)(A): 10 depositions per side

Start with top corporate executives or subordinates?
Apex depositions only when the witness has
unique or superior personal knowledge of
discoverable information
Normally, can only depose a person once (FRCP
30(a)(2)(A)(ii))
Important considerations on timing
Consider Time Limits
Federal:
Depositions are limited to 7 hours
Court must allow additional time if needed for fair examination of
deponent
Includes 30(b)(6) witnesses
California:
As of January 1, 2013, depositions in California state court
proceedings are limited to 7 hours
Limit applies to all parties, except the witnesss counsel
Court must allow additional time where needed to fairly examine
the witness
Does not apply to expert, PMK depositions
How to Prepare for a Deposition
Start with a theory of the case and themes:

What are the elements of the key claims and defenses?
Start your case where it ends the jury instructions or
applicable law
Armed with this information, develop your case theory
by working backwards what do I need to establish or
to defeat in order to prevail?
What are your themes?
The essence or core of your case (This is a case about ...)

Integrate, Validate and Repeat your themes throughout
your case
10

Set Goals (What am I trying to accomplish?)
Fact gathering
Obtain factual admissions: (i) for undisputed facts in the
summary judgment context and (ii) for impeachment and
boxing the witness in to a single version of events at trial
Lay foundations for and eliminate objections to exhibits
Gauge the strengths and weaknesses of the witness
11

Set Priorities (What do I most need to accomplish?)
What are your top must cover topics and must have
admissions?
No wasted energy if the line of questioning doesnt fit
within your goals, abandon it
Stay focused on the big picture (dont ask questions simply
because the witness opened a subject line be governed by
your goals)
12

Deposition Kit
Authored or received by the witness
Additional documents pertaining to the witness or the
subject matter
Biographical materials about witness
Other witnesses testimony, interview notes about witness
Allegations, discovery responses about witness
Prior litigation involving witness
Case-critical documents
Bring at least 3 copies of each to use as exhibits
13

Draft outline
Different styles: outline of topics and necessary
bullet point outline
admissions, questions
Serve subpoena or deposition notice
Ensure compliance with all rules and sufficient time
Consider document requests
Consumer notice in California
14

Decide whether to videotape
Pros:
Compelling visual evidence at trial
Witness and opposing counsel tend to behave better
Cons:
Often not worth the expense
Can help your opponent if the witness is sympathetic
Decide whether to use LiveNote
15
TAKING A DEPOSITION
16
Admonitions
Critical for later use of testimony

Typical admonitions:
Understand oath same oath as administered in court

get copy and right to
Transcription process and right to make changes make changes but I
can comment
if there is a question you don't understand you
Witnesss responsibility to clarify agree to tell me
Wait for question
Verbal responses
Breaks
Medication, alcohol or other impairments
17
Preliminary Questioning
Elicit name/address/employer/position of the witness
Dont waste time, but explore all relevant employment
history, even if obtained through a different employer
Ask about the witnesss preparation
When did the witness meet with counsel and for how long?
Were documents reviewed, and if so, what were they?
Any documents that refreshed the witnesss recollection?
Ask if the witness brought any documents with him/her to the
deposition
If so, ask to look at them and consider marking appropriate
what did you mean by this, by that
documents as exhibits
18
Questioning Techniques
Information-Gathering Questioning (aka The

Funnel)
Summarizing
Gaining Admissions
19
Funnel Approach
Three phases:
The Open Phase: start with
broad, open-ended questions
The Clarification Phase: narrow,
specific questions
Closing Off: ensuring there is no
information youre missing
20
Funnel Approach
When and why should I follow this

approach?
Learn as much as possible about
witnesss relevant knowledge
Encourage witness to talk
If you dont start with broad questions,
you often will miss important facts you
didnt know
If you dont ask narrow questions, you
may not get the testimony you need
21
What are you doing in the open phase?

Letting the witness exhaust her independent memory
Ask broad, open-ended questions
Who, what, when, where, why, how . . .
Learning new facts (could be good or bad facts

usually we want to know them all)
Dont get trapped in your outline: Listen to the witness
and keep track of answers for follow-up and clarification
Taking notes of things you want to know more about

for specific follow-up (e.g., on the phone, coffee,
neck pain)
22
Example of Open Phase

Q.
A.
Q.
A.
Q.
A.
Tell me what you recall about the accident you had with Mr.
Simpson.
I was driving and Mr. Simpson hit me on the left side of my
car.
What else do you remember?
I was driving on Westin Street. I was coming from Starbucks
and headed to the grocery store.
What else do you remember about the accident?
I was on the phone with my sister when the accident
happened. I looked for my coffee for a second. When I
crashed, I had coffee all over me and my neck hurt horribly.
23
What Are You Doing in the Clarification Phase?

Move down the funnel. Start to narrow focus.
Continue to ask open questions, but ask them topic by topic

Questions become increasingly more narrow and closed
within that topic
Your goal is to close out each topic

You want to get narrower and narrower until you get
to yes or no answers
Do not accept non-responsive answers
are you refusing to answer my questions?
24
Example of Clarification Phase

Q. You mentioned you were on the phone with your sister
before the accident happened. How long had you been on
the phone?
A. About ten minutes. She was telling me about a fight she had
with her husband.
Q. Do you usually pay attention to your sister when she talks to
you on the phone or do you ignore her?
A. I pay attention.
Q. You were focused on her describing the fight with her
husband, is that right?
A. Yes. I focused on the road, too.
Q. You were also focused on your coffee cup in your lap and
getting a drink right?
A. Yes.
25
Example of Clarification Phase

Q. So, you were trying to focus on multiple things at the same
time when you got into the accident?
A. Yes.
Q. Which hand were you holding the phone with?
A. Neither. I had it against my ear and my shoulder like this.
Q. You had your neck craned to the right side to hold the phone
with your right ear and your right shoulder, is that right?
A. Yes.
26
Closing Off
Goal: Prevent deponent from reserving information for
surprise use at trial or a summary judgment motion
Obtain all of the deponents information on the issues about which s/he
might testify
Constrained by your questioning abilities, witnesss possible lack of
candor, and TIME
Close off each topic

What else? or Anything else?
Is that it? Have you finished your answer? Do you recall
anything more about ?
Offers the witness an easy way of saying there is no more
27
Example of Closing Off

Q. Do you remember where your hands were?
A. One was on the wheel. One was on my coffee.
Q. Other than what youve described here today, do you
remember anything else about how your body was
positioned immediately before the accident?
A. My foot was on the gas pedal.
Q. Other than what youve described here today, including that
your foot was on the gas pedal, do you remember anything
else
about how your body was positioned immediately
before the accident?
A. No.
28
Summarizing Technique
Take testimony that a witness has provided and

weave it into a summary that you have the witness
agree to
Why do this?
It allows you to use words you like
It can clarify testimony
It lets you get a sound bite for trial or a motion
29
Example of Summarizing
Q. Let me make sure I understand your testimony.

When you got in the accident, you were driving,
but you werent just driving, you were also trying to
focus on your sisters love life, you were
trying
to focus on balancing a phone on your ear
and your
shoulder, and you were trying to focus
on getting
your coffee cup out of your lap and to
your mouth
without spilling it and burning
yourself?
A. Yes.
30
Gaining Admissions
Critical for summary judgment motions, where you

must demonstrate no triable issue of material fact
If necessary, carefully craft questions to match
elements of the claim
Exhaust all potential sources of evidence
Do not repeat or rephrase a question to which you
already have an answer favorable to your position if it
might allow the deponent to modify or change the
answer (i.e., know when you are ahead and when to
quit)
31
Gaining Admissions
Use leading questions - statements with a question at the end
Why lead?
You can use the words you choose to frame the issue
You get to the point faster
Witnesses often agree to leading questions because they
dont want to have a confrontation with you
Who can you lead?
You can lead adverse witnesses, regardless of an objection
You can lead any witness if the other side doesnt object
(consider correcting your question if the other side objects)
Note: leading is not always the best option
32
Example of Gaining Admissions

Q.
You testified that you were listening to your sister speak on your
phone when Mr. Simpsons car made contact with your car?
A. Yes.
Q. And, at that time, you had your phone between your right ear and
your right shoulder, correct?
A. Yes.
Q. And neither of your hands was on the phone?
A. No.
Q. So if you had turned your head to the left, you would have
dropped the phone, correct?
A. Yes.
33
How to Deal with the Forgetful Witness

Do you have any notes (a diary or other writings) about x?
Is there anything that you believe you could do (or review) to
refresh your memory?
Are you certain there is nothing that could cause you to
remember x?
Has anything caused your memory to be impaired (what?
when? how? reversible?)
Dont be afraid of a witness saying I dont know it can
neutralize the witness and allow you to own the testimony on
this subject at trial
34
Using Exhibits
Step 1: Mark and Identify the Exhibit
I would now like to mark for the record Exhibit 3, which
is a May 21, 1998 email from Janice Elmore to Mark
doc to ct rptr
Pierce, bearing Bates stamp PLTF 00062 hand
hand copy to OC
Step 2: Establish Witnesss Competence to Authenticate the
Exhibit
Recognize the document, recognize their email address,
worked at company at time email was sent, etc.
Step 3: Authenticate the Exhibit
Do you have any reason to doubt that this is an email

you sent on that date?
Step 4: Explore the Exhibit

35
Handling Objections and Instructions

Ask good questions
Listen to objections
Is the objection valid? If yes, rephrase; if no, ignore
Make a full record of any instructions not to answer
Get basis for instruction on the record
m'am are you going to follow your atty's

instructions
Ensure witness is agreeing with the attorneys instruction

Ensure record reflects what subject areas are subject to
instruction after privilege raised, continue to ask the other questions you have, make them raise privilege
for each question
or ask counsel are you going to raise privilege re all conversations with Mr. Pierce?
36
Handling Objections and Instructions

Dont waste time arguing with opposing counsel
Ignore counsels comments or arguments
If necessary, remind opposing counsel that objections must be
stated concisely and in a non-argumentative and non-suggestive
manner and that a deponent may be instructed not to answer only to
preserve a privilege or to allow for the presentation of a motion for
a protective order
If you need to move the Court because of opposing counsels conduct,
ordinarily wait until the end of the deposition and after counsels
conduct can be shown to have impeded your ability to conduct the
deposition
If you move too early and lose, the Court may not allow you to
resume the deposition
Do not threaten to go to the Court unless you are prepared to do so
37
Tips for a Clean Transcript

A clean transcript makes life much easier when you need to submit the
transcript to the Court
Speak slowly. The court reporter can only type so quickly.
Take your time. Pauses and silence dont show up on the record.
Avoid ums and uhs (another good reason to be friendly with the
reporter)
Avoid okay
Q. What happened next?

A. The defendant told me I would make $1 million on the
deal.
Q. Okay. How much did you actually make?
38
More Tips for a Successful Deposition
Concentrate on the witness

Not your notes
Not opposing counsel
Its your show

You ask the questions
The witness answers them
Dont be afraid of pauses in questioning
Remember you are being recorded

Unless the parties agree to go off the record, the court reporter will
continue transcribing
Avoid sarcasm and jokes
make sure agreements are on the record
39
Finishing the Deposition
If certain documents have not been produced, or the

witness has refused to answer questions, make clear
that the deposition is not over
Say recess, subject to receiving documents or a motion
to compel concluding for the day but the depo still open
Send opposing counsel a follow-up letter or RFP for
documents referred to in the deposition
Note: defending attorney may ask questions of her

own witness
designate confidential if
Dont forget confidentiality designations! appropriate
40
Finishing the Deposition

The usual stipulations
witness has 30 days after receivved final transcript to make

any changes and supply to other side
No such thing
Generally, governs handling of original transcript &
witnesss review
Witnesss counsel should ask that the deponent be

given an opportunity to review the transcript
(FRCP 30(e))
Deponent is allowed 30 days after transcript is ready
If attorney doesnt ask, right to review and correct
errors may be waived
if not signed, deemed signed with no changes
41
Questions?
can call ct clk we are in a desposition and having a dispute
documents you go over with witnesses preparing for depo can be gotten to
they can't instruct their client not to answer unless privilege or work product (very limited privacy grounds)
"you've made your objection for the record, now direct your client to answer"
Privacy insruction not
to answer. Tax info,
private marital,
sexual, etc. Sounds
like needs to be
private and irrelevant.
Katherine V.A. Smith

GIBSON, DUNN & CRUTCHER LLP
Tel: 213.229.7107
Email: ksmith@gibsondunn.com
42
Mastering the
Deposition
A Critical Skills Workshop
How to Take an Effective Deposition for Use at Trial
How Deposition Testimony Plays Out at Trial
PRESENTED BY: RYAN M. McNAMARA, ESQ.

Shareholder, Call & Jensen
Newport Beach, California
OVERVIEW & STRATEGY

AN EFFECTIVE DEPOSITION INVOLVES BOTH SCIENCE & ART
The Science
Evidence Objections Admissibility Case Trial Presentation

The technical skeleton of evidence, depositions, and trial advocacy
The Art
Persuasion Psychology Recognition of Deception Interrogation

Sales Common Sense (Dont Underestimate It!)
ADMONITIONS. Every time break--have you offered your most truthful accurate and complete testimony in response to my questions.
Can you think of any reason why you would want to change or modify your testimony in any way?
Do you feel the need to change or modify your testimony in any way?
YOU HAVE TO AGREE TO GO OFF THE RECORD--don't allow break. ADMONITION: you can take break, if I have a pending question
to you I need you to answer that question before you take a break--do you agree?
Have you ever been charged with a crime of any nature whatsoever? PUT THIS IN THE BEGINNING ALONG WIITH INITIAL.
THE NECESSARY MINDSET

Master Your Case & Prepare For Victory
Questions, Questions, And More Questions
Who / What / Why / Why Not / Where / When / How / How Often /
Which / What Do You Mean By That / Explain That To Me / Etc.
The Value Of A Throwaway Deposition

Take Control Of The Room
The Power Of Proper Admonitions
"I don't know." I'm entitled to your best estimate, sir, so give me your best estimate.
"Explain that to me."
"What do you mean by that?'

Wander But Dont Get Lost
Assume Nothing
The Witness Answers The Question Asked, Not
The Question They Wanted You To Ask
Listen To The Answer
SeriouslyLISTEN TO THE ANSWER
ADMONITIONS: You understand that your obligation to offer your most accurate, truthful and complete testimony.
Obligation to prepare to offer . . . Did you review all of the materials you felt that were necessary to allow you to offer
your most truthful . . . did all the preparation they needed to do to offer their best testimony.
OBJECTION: Nonresponsive, move to strike everything after "No." ADMONITION: At time I will askw you a question and need you to
answer in a direct yes or no fashion with no further answer. Can I count on you to do that?
ADMONITION: Sometimes I will ask you a question and you will go in another direction, I will have to ask you that question again and you
will have to asnwer the specific questions posed to you. Do you agree to do that?

The Audience Is Listening
Put Your Gloves On
Wear The White Hat
Honor Your Client And Your Profession
DEPOSITION OBJECTIVES
Discover And Explore Facts, Opinions & Evidence
Facts:
Opinions:
Helpful or Harmful
Remember an Opinion is Not a Fact
Evidence:
Documents, Witnesses, Strategies
Lock Down The Claims

Undermine The Claims
Obtain Admissions
Bolster Witness Credibility
Destroy Witness Credibility
Bias
Prejudice
Interest in Outcome
Motive
MOTIVE
Ask The Question
Seek Always / Never Responses
Lucky
JM-00180-01
Page 180
Page
180
Page
180
11
Q Understood.
Do
you
have
to whether
121
Can
you
any knowledge
business thatas
you
21
Yes
oridentify
no? any
2 have
any A
of
the
defendants
that you
have ever
filed to
13
sued
has ever
made
any changes
related
22
I that
haven't
investigated.
143 your
accessibility
lawsuits
againstclaims?
have ever made any changes or
23
Q
Okay.
154 modifications
A No.
related in any way to your
24
Have
you ever even considered doing
165 accessibility
Q Okay. claims?
17
ever
whether any of
25
Yesyou
or
no?Iinvestigated
6
A Have
Well,
when
read the settlement,
they are
181 the businesses
that
you
have
sued
have
ever
made any
A No.
7
promising
that
they
want
to
make
the
change.
19 changes that relate in any way to your accessibility
Q Okay.
208 claims?
9
A They want to make it accessible, but I
10 don't remember the specific.
that?
Destroy Witness Credibility
Deception
Exaggeration
Lying
Need to Speculate or Guess
JM-00312-16
Assist Your Experts
Attack Their Experts
Expose Unsupported Conclusions
Dismissal?
Settlement?
Trial?
IMPEACHMENT STRATEGY
Omission
Common Sense
Inconsistent Actions
Inconsistent Statements
Impossibility
IMPEACHMENT BY INCONSISTENT ACTION
IMPEACHMENT STRATEGY
Omission
Common Sense
Inconsistent Actions
Inconsistent Statements
Impossibility
TIPS & ADVICE TO GIVE YOU AN EDGE

The Importance Of Word Selection
Take The Witness Down The Rabbit Hole
If They Want To Play A Game, Make It
Your Game
TAKE THE WITNESS DOWN THE RABBIT HOLE
JM-00340-23
TIPS & ADVICE TO GIVE YOU AN EDGE

Make Time Stand Still
LiveNote & Videotaped Depositions
Advice For The Younger Attorneys
PRACTICAL EXAMPLE
LABOR & EMPLOYMENT
Q Do you have any criticisms or complaints that in any way relate to either Cheesecake Factory
or your employment with that company?
A I do not.
Q Do you believe that The Cheesecake Factory always treated you in a fair and appropriate and
reasonable manner?
A Yes.
Q After you were terminated from Defendant, did you, in fact, seek reemployment with
Cheesecake Factory?
A No.
Q Why not?
A I left The Cheesecake Factory for quality of life.
Q And when you say you left The Cheesecake Factory, was your departure from The Cheesecake
Factory entirely voluntary?
A I was recruited by Defendant with a salary increase.
Q And then in October or November of 2005, is it your most truthful, accurate, and
complete testimony that you voluntarily left Cheesecake Factory in order to join
Defendant as a general manager?
A During my break, I actually -- it's been a while since I've thought about this, over
five years, but at the time, I did have a good relationship with Scott, and he felt that
because of what was going on with the restaurant that that role in that location wasn't
a good fit for me, and I concurred, and I put in my resignation. And he also felt that it
would be a good idea for me to -- that it wasn't a good fit based upon my situation at
home, my family life, so he recommended that I -- if I wanted to actually move
forward as far as submit my resignation.
Q So you requested a break, conferred with your attorney, and now recall
that you did not, in fact, voluntarily leave Cheesecake Factory; is that
correct?
May the record reflect a long pause. Go ahead.
A Yes.
Q You changed your testimony after the break to say that "We felt
that what was going on with the restaurant, that it was not going to
be a good fit for you. Please describe in detail what you meant by
that.
A The restaurant, when I took over the location, had a lot of
opportunities. As a new general manager in that role, I felt that, as
well as Scott, it was too demanding for me and I would -- I had -- at
the time prior to putting in my resignation, I was looking for
employment elsewhere.
Q Why do you believe that the role of general manager at Cheesecake Factory was
too demanding for you?
A At that time, the restaurant had a lot of opportunities.
Q Object as nonresponsive. Move to strike the entire response.
Sir, I asked you: Why do you believe that the role of general manager at
Cheesecake Factory was too demanding for you?
A The restaurant, I felt, at that time had a lot of issues that were very demanding,
and I felt that it had an impact on my personal and professional life, and I wanted to
have an improved quality of life.
Q At any time during your employment with Cheesecake Factory, did you have any concerns that
you may be terminated from your position as a general manager? Yes or no?
A No.
Q Is it your most truthful testimony under penalty of perjury that at absolutely no time during
your employment with Cheesecake Factory did you ever have any concerns that you could be
terminated?
A That concern didn't come up until the latter stages where we both concurred, my supervisor as well
as I, that it would be best for me to move on because of the fit.
Q Sir, I want you to listen very closely to this question. Okay?
Is it your most truthful testimony under penalty of perjury that at absolutely no time during
your employment at the Cheesecake Factory did you ever have any concerns that you could have
been terminated?
A I felt, after speaking to my supervisor, that -- because of the relationship I had with Scott, we felt
that it would be in my best interest, both him as well as I, that I would move on. That was the general
consensus.
Q Did you at any time during your employment as a general manager of the Cheesecake Factory
have concerns that you could, in fact, be terminated from that position? Yes or no?
A Yes.
Q Did Scott, your supervisor, also share with you concerns that you could, in fact, be terminated as a
general manager from that restaurant?
Yes or no?
A Yes.
Q And what was your understanding as to what would happen if you did not, in fact, put your
resignation in?
A I didn't question him because I wasn't happy.
Q You weren't happy at the Cheesecake Factory; correct?
A Yes.
Q You were overwhelmed at that location; correct?
A Yes.
Q You were under a great deal of stress at that location; correct?
A Yes.
Q You were under a great deal of anxiety at that location; correct?
A Yes.
Q Your personal life was suffering severely at that location; correct?
A Yes.
Q Your family life was suffering severely at that location; correct?
A Yes.
Preparing Witnesses and

Defending Deposi1ons
Lauren Teukolsky
Traber & Voorhees
November 13, 2015
Defending the Plain1s deposition

The plain1s deposition is oGen the most
important event in the lawsuit.
If the plain1 performs well, increase chances
of seL lement. Conversely..
Prepare, prepare, prepare.
Should You Let the Plain1s

deposition Go First?
Before the Plain1s deposition

Use an intake ques1onnaire that asks the hard
ques1ons.
Have you ever lied on an employment
applica on?
Have you ever been convicted of a felony?
Have you ever been arrested?
Have you led previous lawsuits or
administra ve charges?
Publicly Available Sources of

Informa on About Your Client
Check all social media Facebook, Instagram,
LinkedIn, etc.
Google your client.
Criminal and civil court records.
Public Records Act requests to DFEH, DLSE, or
other agencies.
The Talk
Need to have a serious talk with your client
about needing to know all of the skeletons in
the closet.
I cant protect you unless I know everything.
The Talk

Obtain ALL medical records, educa on records,
and other per1nent records.
Read the medical records carefully they are full
of pi` alls.
Obtain ALL documents from the defendants
related to your client and the lawsuit. Do not
agree to go forward with the deposition un1l you
have all of these documents. You should get out
your document request at the earliest possible
moment.
The Chronology
A chronology is cri1cal to good witness
prepara on.
Start the chronology as soon as you start
working on a new case.
Have a paralegal create a document
chronology. Add to the chronology as you
receive documents during the case.
The Chronology
Use case management soGware to prepare a
chronology based on the documents,
discovery responses and deposition
testimony.
Database soGware vs. word-processing
soGware: database wins!
WriL en Materials for the Plain1

All interrogatory responses that the plain1
has helped prepare.
Key documents in chronological order.
WriL en instruc1ons to the plain1 about the
deposi1on.
Preparing the Plain1

Have the plain1 watch a video about
deposi1ons.
Have the plain1 watch actual deposition
footage.
Plan for two or three sessions to mock depose
your plain1.
Take Prepara on Seriously

If you are doing a mock deposition, then do it
seriously. Stay in role.
Telling your client the rules only goes so far.
Dont forget to prac1ce with exhibits.
Videotape your client answering prac1ce
ques1ons and go over the videotape with her.
Take Prepara on Seriously
The Top Rules

Your Plain1 Must Learn
A deposi1on is the defendants opportunity to
learn informa1on about your case. It is a
ques1on-and-answer session.
A deposi1on is NOT a conversa1on.
A deposi1on is NOT your opportunity to tell
your story. That will happen at trial when I
ask you ques1ons.
Opposing Counsel is Not Your Friend
Tell the Truth
Tell the Truth

Explain the meaning of perjury to your
client.
A lawyer cannot rely on tes1mony that he/she
knows is perjured. Cal. Rule of Prof. Conduct
5-200.
It is NEVER okay to advise a client to lie.
An1cipate the hard ques1ons, and prepare an
answer that is truthful.
The Top Rules

Only answer the ques1on youve been asked.
Make sure you understand the ques1on
before you answer.
Do not volunteer informa on with narrow
excep1ons (e.g., emo1onal distress).
The Top Rules

Wait a beat before answering to give your
lawyer an opportunity to object.
Do not guess. Do not be afraid to say, I dont
know or I dont recall right now.
Do not get hung up on dates (unless theres a
date or two that are crucial to the case).
Your Client is Not a Robot
Breathing Room
Prac1ce building breathing room into answers.

When did that happen? I cant remember the
exact date, but it was some1me in early 2008.
What did he tell you? I cant recall his exact
words, but he said something like, Im not paying
you for any over1me.
I cant recall at this tim, or Those are the only
ones I can recall at this time, or There were
more people, I just cant remember their names
right now.
Teach Your Client to Hold Her Ground

Client will be asked the same ques1on over
and over, in dierent ways. Prepare the client
to give the same answer no maLer what.
Silence is the enemy. Prepare your client to
deal with silence. Remember, this is not a
conversaon.
Be silent after question--maybe they say more.
Witness--don't fill silence with more answers.
A Few Words About Likeability.
A Few Words About Likeability.

If your client is likeable, this increases the
value of your case. Conversely..
Client must remain calm and polite during the
deposition (with some excep1ons). Client
must not be evasive or comba ve.
Client must give the ght to you, her lawyer.
Client must dress and present herself as if she
were in front of the jury. Be explicit about
inappropriate clothing, makeup, etc.
Do Not Let This Happen
Objec1ons During a Deposi1on

Most objec1ons are preserved, except as to
the form of the ques1on or the discoverability
of informa1on ( 2025.460(b)), e.g., aLorneyclient privilege.
If you do not object to the form of a ques1on,
the objec1on is waived.
You should NOT object as to whether the
tes1mony is ADMISSIBLE at the 1me of trial
(e.g., hearsay, relevance, etc.).
Objec1ons to Form of Ques1on
Ambiguous or unintelligible
Argumenta1ve
Assumes fact not in dispute or not in evidence
Calls for narra1ve
Calls for specula1on
Compound
Asked and answered
Leading
Misquotes a witness
Too general
Deposi1on Objec1ons
An objec1on can also be a signpost to your
client that there is something wrong with the
ques1on.
How to Make an Objec1on

Must state the grounds for the objec1on, e.g.,
Objec1on, vague and ambiguous.
No speaking objec1ons. Except.
Client must s1ll answer the ques1on despite
your objec1ons to the form.
Instruc1ng Your Client Not to Answer

You may instruct your client not to answer a
ques1on where the answer would disclose
privileged informa on.
E.g., a orney-client, privacy, spousal privilege,
etc.
Instruc1ng Your Client Not to Answer

You may also instruct your client not to
answer contention-type ques1on, e.g., What
informa on do you have to support your claim
that the defendant was negligent?
These questions are permitted in
interrogatories, but not deposition.
Ri#ind v. Superior Court, 22 Cal. App. 4th
1255, 1262 (1994). READ THIS CASE AND
BRING IT WITH YOU.
If your client is asked CONTENTION TYPE question, what are

your claims and what facts, etc.
Going o the Record

If you need to take a break to talk to your
client about something, take a break!
Technically cannot go o the record unless
your opponent stipulates ( 2025.330(b)).
If your opponent refuses to go o the record,
leave the room.
Going o the Record
Abusive Conduct During deposition
Abusive Conduct During Deposition

Make a record of abusive conduct.
Let the record reect that Ms. Smith is
scowling at my client and rolling her eyes.
Let the record reect that Mr. Jones is
pointing at me and raising his voice.
Let the record reect that Ms. Dean is
pounding the table with her st - again.
End the Deposition

If the conduct is overly-abusive, stop the
de and seek a protective order.
Before you stop the deposition, you must
have a clear record of the harassing and
abusive tactics.
A Word About Correc1ng Transcripts
A Word About Correc1ng Transcripts

If your client has given incorrect testimony, you
should instruct her to FIX the testimony during
the deposi.on.
Take a break, and prac1ce the correc1on in the
hallway.
I would like to correct my previous testimony. I
said that Gary told me I was red before I told
him I was pregnant, but I misspoke.
You should only correct transcript errors that are
egregious. Too many correc1ons may lead to the
reopening of your clients deposition.
A Word About Asking Your Own

Client Ques1ons During the
deposition..
A Word About Asking Your Own

Client questions During the
deposition..
If your client has given incorrect or unclear
testimony, you may ask questions at the end

to x or clear up the testimony.
Otherwise, do not ask questions! You will
simply be showing your hand to your
opponent and opening up your client to
further ques1oning.
Remember the deposition is not the
opportunity for your client to tell her story.
Represen1ng Non-Plain1 Witnesses

You can enter into a limited scope
representa on for the purpose of
represen1ng an important witness.
Query whether you really want to do this!
Represen1ng Non-Plain1 Witnesses
ADVERSEEXPERTDEPOSITIONSSTRATEGIESANDTACTICS
I.
Overall Goal is to Lead a Controlled Conversation. There is no standard outline for an
expert deposition. How one approaches and takes a given experts deposition depends on many
factors,includingthosediscussedbelow.Butwhatevertheapproach,theoverarchinggoalistobein
apositiontoleadacontrolledconversationwiththeexpert,inwhichyouleadhim/herintofavorable
areasyouhavealreadyplottedout,ratherthanmarchingthroughadetailedoutlinemakingcheck
marksasyougo.Asdiscussedhere,thisgoalisbestachievedbyhavingaclearunderstandingofthe
roleoftheexpertinyourcase,aplanofattack,andanarrayofcontrolpiecesthatwillallowyouto
leadandcontrolthediscussion.
II.
Preparation is More than Half the Battle. Having a coherent game plan for each expert
depositioniscriticalanditwillusuallysavealotoftimepreparingforandtakingthedepositionofan
adverseexpertwitness.Attachments1and2areexcerptsfromthedepositionsoftwoexperts(a
statisticianandaneconomist)takeninarecentcasewhichillustratethesimplifyingeffectofhavinga
clear notion of what you want to establish with, and how you want to portray, each expert in
deposition.
III.
ConsiderationsinPreparingforExpertDeposition
1. Reduceexpertsopiniontoitsessencetodemystifyitandunderstandhowtoattackit.The
bestwaytounderstandwhatanexpertissayingandhowtochallengeitistoreducethekey
opinion(s) to simple terms i.e., the basic opinion of the economist noted above in
Attachment 2 is that every employee who works the closing shift at a restaurant chain in
California clocks out but continues to work until the building closes down, and the basic
opinionofthestatisticiannotedaboveinAttachment3isthat,assumingthateconomistis
correct,hereishowtocalculateclasswideunpaidhoursandwages.
2. Considerexpertsoverallroleincaseandprepareaccordingly.Istheexpertaleadplayerin
the opponents anticipated trial presentation (e.g., economist in an antitrust case, survey
expertinatrademarklikelihoodofconfusioncase),orlikelytohavealesserrole(e.g.,damage
expert in a wrongful termination who will proffer a damage calculation)? You should
understandtheexpertssignificanceandprepareaccordingly.Iftheothersidescasehinges
onthevalidityoftheexpertsopinion,youshoulddigdeeplyintotheexpertspriortestifying
history(e.g.,Westlawresearch,googlesearches,expertsownwebsite(s)),consultwithyour
ownexpertregardingtheexpertsbackgroundandopinions,andtakeotherstepsneededto
identify and probe vulnerabilities in the experts background, analysis, or opinion. This
involves a costbenefit analysis of how much time and money you or your client should
reasonablyexpendgiventheexpertsoverallsignificanceinthecaseandwhatyouthinkyou
mightfind.Attachment3isanexampleofamotiontoexcludethatwasfiledasanallout
attackonanopposingsurveyexpertuponwhosesurveyandtestimonytheopponentsentire
likelihoodofconfusiontrademarkcasehinged.Seepp.1819.Bycontrast,Attachment4is
an excerptfromadepositionofatreatingphysicianin apersonalinjurycase inwhichour
entiregoalasdefensecounselwastoshowthatthisdoctor,whohadpreviouslytreatedthe
plaintifffor aneckinjuryfroman automobile accident,couldnot distinguish theplaintiffs
claimedsymptomsfromalaterinjuryheclaimedtohavesufferedataselfstoragefacility.
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3. Considerimportofexpertsprofessionalbackgroundandtestifyinghistory.Youcanusually
gaugetheexpertslevelofexperiencefromtheexpertdisclosureandmakesomerudimentary
predictions. Hastheexpertissuedmanyexpertreportsandtestifiedextensively,oristhe
expertrelativelynewtoexperttestifyingwork?Experiencedexpertshaveoftenseenitall,
fromdifferentangles,soitisunlikelyyouwillbeabletoscoreaknockoutblow.Butvery
experiencedexpertsmaybeturtleswhoareafraidtostickouttheirnecksonkeyissueslest
theyjeopardizetheirlivelihood.Inthatcase,youmayhaveagoodchanceofseverelylimiting
orqualifying their opinions. Conversely,lessexperienced experts may bebolder, butthat
couldcausethemtobemorevulnerabletoDaubert/KellyFrye)basedattacksforinadequate
foundation,improperassumptions,orspeculativeorunsupportedconclusionbecausethey
simplyhave not experienced howavigorouscrossexamination. Attachment 5 is relevant
deposition testimony from an experienced expert in a trademark case who opined on the
proceduresofthePatentandTrademarkOffice,butreadilyadmittedtovariouslimitationson
the scope of his opinions. By contrast, Attachment 6 is a motion to exclude a very
experiencedinsuranceexpert(heclaimstohavetestifiedover500times)whowascompletely
unafraidtoofferawidearrayofopinionsoutsidehisareaofexpertise.Seepp.45.
4. Planyourdepositionquestioningbasedonhowintendtoportrayexpertattrial.Youshould
approachtheexpertdepositionwithatentativeplanregardinghowyouplantoattackthe
expertattrial,whichofcoursemayneedtobemodified.Themattersyoufocusonshould
dependonthecontentsoftheexpertsreportandyourneedsforattackingtheexpertattrial.
Ifyouplantoargueattrialthattheexpertisunqualifiedand/orincompetent,thenplanto
spendalotoftimeindepositionontheexpertsbackgroundandqualifications.Ifyouwantto
depicttheexpertasahiredgun,thenplantospendalotoftimeregardingherlackofnon
testifyingworkorothersourcesofincome.Ifyoubelievetheexpertiswellqualifiedandher
basicapproachissound,butshediffersfromyourexpertonseveralkeyassumptions,then
plan to spend much of your time setting up scientific or technical challenges to those
assumptionsandtheexpertsreasoning,andlesstimeontimeonqualifications,background,
andbiasissues.
5. Plan to create either common ground with your expert (or your case theory) or sharp
contrasts,nothinginbetween.Oneobjectiveshouldbetomaketheopposingexpertpicka
sideindepositioneitherwithyouoragainstyouoneverykeyissuewithinthepurviewof
hisopinions.Yourmodusoperandiinthedeposition,onimportantissues,shouldbetoget
theexperttoclearlyagreewithcertaincontentionsorpointsofyourcaseoryourexpert
e.g.,thediscountratefordamageexperts,thegoodreputationofyourexpert,thefactthata
certainarticleortextbookisauthoritativeorclearlydisagreeandexplainwhy.Establishing
commongroundwithyourexpertallowsyoutonarrowthescopeofthedisagreementincases
where,presumably,thisfavorsyou.Forexample,ifopposingvaluationexpertsusethesame
valuationmethod,establishindepositionthattheexpertagreesthatyourexpertusedthe
correct valuation method and their only disagreement is on the particular comparables
selectedthenexhausttheexpertonallofthereasonswhyhercomparablesarecorrectand
your experts are not. Attachment 7 is an excerpt from the Reference Guide on Survey
Research,byShariSeidmanDiamond,whichsetsforthpurportedguidelinesforsurveysused
inlitigation.Mostsurveyexpertswillagreethatitisauthoritative,eventhoughtheymaynot
actuallyadheretoalloftheguidelinescontainedtherein.
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6. Planforadmissionsregardingwhatexpertisnotopiningonandwhatareasthewitnessis
notanexpertin.Thisisimportantbothsubstantivelybecauseitcanlaythegroundworkfor
amotiontoexcludeorimpeachmentandforappearancesbecauseitallowscounselto
argueattrialtheexpertdoesnotprofesstobeanexpertontheparticularissueinthiscase.
Attachment 8 isa motiontoexclude theopinions of a plaintiffsdamage expertin a class
actionbasedonhismanyadmissionsregardingwhathewasnotopiningon,whichtheCourt
thengranted.
7. Consultwithyourexpert.Ifthedepositionwarrantsinvestingsignificanttime,consultwith
anexperttodetermine:(a)anyredflagsintheopposingexpertsbackgroundbasedonher
CV or other research; (b) potential weaknesses of opposing experts opinions; and (c)
strengthsofyourexpertsopinion.Youshouldofcoursespendmuchofyourtimeprobing
theweaknessesoftheopposingexpertsreport,butyoushouldalsospendampletimehaving
theexpertvalidate,directlyorindirectly,keyaspectsofyourexpertsanalysis.
8. Researchkeytechnicalorscientificareaslookingforvulnerabilities.Ifadepositioninvolves
acomplexortechnicalsubjectmatterinwhichyouareunfamiliar,yourgoalshouldbetotry
tounderstandthebasicstructureoftherelevantareaandidentifypotentialvulnerabilities
ratherthanbecominganexpertinthesubjectmatteryourself.Ifyoutrytocramyourway
into becoming an expert, you may then spend most of the deposition arguing with the
expertoverareashehasbeenstudyingorpracticingformanyyears.InthewordsofSocrates,
theonlytruewisdomisinknowingyouknownothing.Whenyouapproachanewsubject
in this vein, you are more likely to hone in on areas that from your commonsense
perspectivedonotmakesenseoratleastrequirefurtherexplanation.Oftenconsulting
with your expert is the easiest way to determine these pressure points, but if that is not
feasibleonecanfindmanyhelpfularticlesbyconductingsearchesonGoogleorintheexpert
literature. Attachment9 is an exampleof this from aGooglesearch thatsummarizes the
accepted(DSMIV)criteriafordiagnosingPosttraumaticStressDisorder.Indeposingapsyche
expertwhohasdiagnosedtheplaintiffwithPTSD,thishelpsframethediscussionandallows
you to concretely focus on certain aspects of the plaintiffs behavior that you contend are
inconsistentwithaPTSD,ratherthanhaveanetherealdiscussionaboutsuchmattersthatthe
expertwillinvariablywin.
9. Writeoutkeyquestions.Whenthereisanimportantissueorlegaltestinacasethatmay
requireparticularlanguage,youshouldwriteoutandreviewthequestiontoensuretoinclude
thekeywordsorphrases.Attachment10,theCACIJuryInstructionoftheStandardofCare
for Health Care Professions, presents an example of such language the level of skill,
knowledgeandcarethatotherreasonablycarefulpractitionerswoulduseinthesameor
similarcircumstancestobeusedinamedicalmalpracticecase.
10. Plancontrolpieces(documents,othertestimony,andcommonsense)tocornerexperton
keyissues.Controlpiecesaretheweaponsofcrossexamination.Theyallowyoutopinthe
expertdownonanissueand/orlimitheroptionsinrespondingtoquestions.Theycanbe
mundane,suchasanaccepteddefinitionofakeyconcept(e.g.,scientificevidence)inan
authoritativework,ormoredramatic,suchastheexpertscontradictorypriortestimonyor
report. Control pieces often include the experts prior reports or testimony, conflicting
researchortestresultsbyothers,orevenjustbasicscientificprinciplesorcommonsense
ExpertDepositionsStrategiesandTactics
July30,2015
Page|3
which,iftheexpertdaredispute,willgreatlyunderminehercredibility.Oneofthemostbasic
controlpiecesistheexpertsreportitself.Ifthedatainthereportprovidesaninsufficient
foundationfortheexpertssweepingconclusions,thereportfailstoaddressakeyarticleor
testresult,orthereportincludesmanifestlyfallaciousreasoning,theexpertislockedintothat
oncesheconfirmsthereportcontainseverything.Ofcourse,thisisrequiredinFederalCourt
underFRCP26(a)(2)(B),arelevantexcerptofwhichisincludedasAttachment11.Similarly,
indisputableprinciplesandcommonsensecanbewieldedasacontrolpiece.Attachment12
containsexcerptsfromadepositionofamedicalexpertinwhichwetriedtogethimtoadmit
thatthereisnoscientificevidence(i.e.,randomized,placebocontrolledtesting)showing
that the subject product reduces the symptoms of childrens common colds, and that a
handfulofmotherstellinghimthisisnotscientificevidence.
11. When you establish a gap or weakness in the experts analysis, exploit it. Part of the
planning process is to identify potential vulnerabilities in the experts background or her
report. You also want to mentally rehearse what you will do if you obtain the expected
admissionsyoushouldplantogetcategoricaladmissionsfromtheexpertonkeypoints.
Attachment13containsexcerptsfromadepositionofasurveyexpertwhomerelycritiqued
thesurveydonebymyexpertwithoutdoinghisownsurveyorconductinganyresearch.Once
he admitted his critiques were based merely on his own experience and personal views, I
repeatedlyforcedhimtoadmithisviewswerenotsupportedbyanyempiricalevidencenor
a single actually confused person. Attachment 14 contains excerpts from a deposition in
whichapainmanagementmedicalexpert,whowastryingtodefendtheeffectivenessofa
productthatusedmagnetstorelievepain,admittedithadonlyaplaceboeffect.
12. Scopeofrequestsfordocumentsanddata.Makesuretorequesttheentirefile,whichshould
include:(a)allnonprivilegeddrafts;(b)allmaterialstheexpertreliedupon;(c)allmaterials
theexpertconsidered,evenmaterialtheexpertconsideredandultimatelydidnotrelyon;
and(d)allresearchdonebytheexpert,includingmaterialsexpertsoftendonotchooseto
printandoutincludeintheirhardcopyfilesuchasinternetresearch,reviewofcommon
reference materials or government websites, or the like. Attachment 15 is the relevant
excerptfromFRCP26(b)(4)(B)establishingthatinfederalcourtdraftsofexpertreportsare
privilegedwithoutseveralexceptions.
13. Timing of receipt of documents and data. Although the default is to have the materials
produced at the deposition, try to avoid the mad scramble this entails by agreeing with
counseltomutuallyproducetheexpertsfilesbeforethedeposition.
14. Considerwhat, if anything, youareholding backto use asasurprise at trial. In some
situations,youmaywanttoholdbackimpeachmentmaterialanduseitforthefirsttimeat
trial.Beforemakingthisdecision,notethatoftentimeseffectiveimpeachmentrequiresthat
acertainfoundationbeestablishedwhichyoumaywanttodoindepositionratherthanwait
until trial. Also, this tactic increases the risk that a court may exclude such material,
particularlyifyouwithholdasubstantivechallengetotheexpertsopinionsratherthanpure
impeachment.
IV.
TacticsforQuestioning
November13,2015
Page|4

1. Remembergoalleadacontrolledconversation.Ifpreparedasnotedabove,youshould
aimtohaveaconversationinwhichyouleadtheexpertintoareasyouhavechosenusing
controlpieces.
2. Lockdownexpertonbasicissues.Ifyoudonothingelse,youmustprecludethepossibilityof
being surprised at trial. Keep in mind that in federal court, under FRCP 2626(b)(4)(B), an
expertsdraftreportsandmanycommunicationsrelatedtoitmaybeprivileged.
a. Clear statement of assignment. Establish who, what, when, where, and how of
assignment.Whatwastheassignment,whatspecificallydidheorshesay,whatdidexpert
say,whatquestions didexpertask,whatdocumentsdidassignorreference orprovide
initially?
b. Establish experts report contains all opinions, reasons/bases for opinion, data or
evidence relied on for opinions. FRCP 26(a)(2)(b) requires this anyway, including a
complete statementof all opinions,thebasis or reasons therefor,and thedata or
otherinformationconsideredbythewitnessinformingtheopinions.Butyoushould
alwaysconfirmduringtheexpertstestimonythatnothingismissingfromthereport.
c. Establish no plans for additional work. Confirm the expert has no need or plans to
conductadditionalworkorissueadditionalopinions;orifhedoes,findoutwhatitisand
whyitwasnotincludedintheexpertreport.
d. Establishexpertsdegreeofconfidenceinthereport.Confirmtheexpertdoesnotwant
tochangeorupdatethereport;orifshedoes,documentwhatchangessheseeks and
why.Althoughsomecourtsconsiderthisharassing,trytogettheexperttostateher
degreeofconfidenceonkeyaspectsofheranalysisorconclusions.Themorecertainthe
expert,thebiggertheimpactoncredibilitywhenthereportisproventobeerrorridden
orfullofimproperreasoningorconclusions.Fewexpertswillsaytheyarenotcertain
theirreportiscorrect.
e. Establisheachstepinpreparingtheexpertreport.ThisislessfruitfulsinceFRCP26(b)(4)
extends attorney work product protection to drafts of expert reports and certain
communicationsbetweenexpertsandcounsel.w
f.
Establishexpertproducedentirefile.Confirmthattheexpertproducedherentirefile
anditcontainseverything.
1) allopinions
2) allresearchandanalysissupportingopinions
3) allworkdonebyanyoneinexpertsofficeregardingcase
4) allmaterialsexpertdecidednottorelyon
5) allcommunicationswithcounsel
6) allbillingrecordsallbillssenttocounsel
7) allpaymentsmadetoexpertregardingcase
November13,2015
Page|5

3. Focusonissuesthatmayimpacthowexpertappearsattrial
a. Exploitnegativeaspectsoftheexpertsdemeanor,presentationorappearance.Experts
come in all types, from haughty, condescending ivory tower academics to down to
earth practitioners and everything in between. Some are calm and patient, but may
appearcoldandroboticwhentestifyinginsomecontexts;othersmaybeselfassuredand
passionateaboutthesubjectmatteroftheirexpertise,butmayappearfieryandshort
temperedwhenchallenged.Trytodiscernthesetraitsandusethemtoyouradvantage,
particularlyifthedepositionisvideotaped.
b. Establishareasofnoexpertiseornoopinion.Asidefrombeingimportanttounderstand
thescopeofanexpertsopinion,thereisacollateralopticalbenefittogettinganexpert
whojurorsmayexpecttobeallknowingmakeanarrayofadmissions,inseriatim,on
whatsheisnotanexperton.Thiscanbeaneffectivewaytoneutralizeanexpertat
trial.
c. Establishattorney,notexpert,iscontrollingtheengagement.Asktheexpertanarrayof
questions designed to show that she is basically at the attorneys beck and call, i.e.,
accepted the engagement immediately when contacted, didnt request additional
documentsorinformationbeforedeciding,nevermetnorspokewithclient,didntask
attorneyquestions,didntrequestanydocumentsortests,simplyreceiveddocumentsor
deposition transcripts (or excerpts thereof) provided by attorneys, didnt conduct
independenttestingoranalysis.
d. Probeabilitytorecallspecificfactsorcalculationswithoutlookingatreport.Experts
oftenrelytooheavilyontheirreportandarenotpreparedtorecallfoundationalfactsor
explaintheirconclusionswithoutnotes.Ifthedepositionisvideotaped,thismaycause
theexperttolookbumblingorunprepared.
e. Probe any issues with prior testimony, prior exclusionary orders, or reputation. You
shouldasktheexpertquestions aboutanyblemishes inherpriortestimony,academic
background,orprofessionalbackground.
f.
Establishagreementwithyourexpert.Asdiscussedabove,establishingcommonground
withyourexpertallowsyoutonarrowthescopeofthedisagreementandpropupthe
appearanceofyourexpertifneeded.
4. Establish a foundation for Daubert/KellyFrye challenges. This is usually the heart of the
deposition.Itisoftencumbersomeandboring,butitshouldbedonesystematicallybecause
thisisanessentialfoundationforsettingupchallengestotheexpertsconclusions.
a. Allopinions.Haveexpertstateeverysingleopinion.
b. Allsupportforeachopinion.Haveexpertstateallsupportforeachseparateopinion.
1) eachpublicationorreportexpertreliesonforeachopinion
2) foreachpublicationreliedupon
a) whopublishedit
November13,2015
Page|6
b) canexpertsummarizepertinentinformation/theory/methodology
c) howdidpublicationassistexpert
d) isexpertfamiliarwithauthor'sreputation/experience
e) waspublicationpeerreviewed
c. Allfacts/dataexpertreliedon.Haveexpertstatesuchfactsordataforeachseparate
opinion
1) whatdatadidexpertspecificallyreview
2) howdidexpertdecidewhatdatatoreview
3) whatdatadidexpertrelyon
4) ifanydatawasnotused,why
5) whoassistedexpert
6) whatadvice/assistancedidcounseloffer
d. Allassumptionsexpertmade.Haveexpertstateallassumptionsshemade.
1) identifyallassumptions
2) describesourceorbasisforeachassumption
e. Every methodology/theory expert relied on in forming opinions. For each
methodology/theoryexpertreliedupon,determine
1) iswitnessanexpertinthisareaanyeducationorexperience
2) canexpertidentifyanyliteraturesupportingit
3) canexpertsummarizemethodortheory
4) hasmethodortheorybeentested
5) canmethodortheorybefalsified(andhow)
6) doesmethodortheoryhaveaknownerrorrate
7) has method or theory been subjected to peer review and publication in academic
journalsorotherrespectperiodicals
8) hasmethodortheorybeen"generallyaccepted"
9) identifyanystandardscontrollingtheapplicationofthemethods
10) isexpertawareofanydissentingviewscitationstoliterature
11) howwouldexpertrespondtodissentingviews
12) whatisthecontextinwhichthemethod/theoryisusuallyappliedlitigationversus
nonlitigationcontexts
November13,2015
Page|7
13) are there certain kinds of questions that this theory/method cannot answer (e.g.
causation,fault)
14) hasexperteverdoneworkinthisareaoutsidethelitigationcontext
15) Wouldanytheoriesandmethodsnotusedbyexpertbepertinentwhydidn'texpert
employthesemethods
f.
GroundsforDaubertChallenge
1) improperextrapolationhastheexpertleaptfromanacceptedscientificpremiseto
anunsupportedconclusion
2) relianceonanecdotalevidencehastheexpertbasedheropinionontheexpertsown
experienceoronafewcasestudies
3) relianceontemporalproximityhastheexpertlookedatallpossiblecausesorjusta
simplebeforeandafterreviewofplaintiff'sconditioninthisparticularcase
4) insufficientinformationaboutthecasehastheexpertrelieduponproperscientific
methodology, used incorrect facts or assumptions in the analysis, or are there
additionalfactsthatmightchangetheexpertsmind
5) lackoftestinghasthehypothesesthattheexpertreliesuponbeentestedforthe
propositioncited
6) subjectivity the scientific method must be an objective one, if an expert's
methodologycannotbeexplainedinobjectivetermsorprovenincorrectbyobjective
standardsthenitispresumptivelyunreliable
5. Proposehypotheticals.Afterhearingtheexpertsreasoningandconclusions,proposeoneor
morehypotheticalsinwhichyouchangeafact,assumption,orvariableinordertotestthe
expertsconclusions.
6. Establishthingsexpertdidnotdo.Establishexpertdidnotdocertainkeythings,e.g.,didnt
visitthesiteoftheaccident,conductanyactualtesting,readdepositions,interviewwitnesses,
readthecomplaint,etc.
7. Obtainkeybillinginformation.
a. billingrateinthiscase
b. billingrateinothercases
c. amountsbilledtodate
d. amountstobebilledthroughtrial
8. Depositionpreparation.Whatstepsdidtheexperttaketoprepareforthedepositionwho
didshemeetwith,whatdocumentsreviewed,etc.
9. Careerasexpertwitness.
a. percentageoftotalincomeattributabletoexpertwitnesswork
November13,2015
Page|8
b. doesexpertreportidentifyallcasesinwhichexperttestifiedattrialordeposition
c. anyothercasesinwhichexpertpreparedareportorsubmittedadeclaration
d. anypreviouscasessimilartothisoneforeachsimilarcase
1) subjectmatterofcase
2) subjectmatteroftestimony
3) forwhomdidtheexperttestify
4) whatlawfirmretainedexpert
5) didexpertpreparereport
6) didexperttestifyindeposition
7) didexperttestifyattrial
8) anymotionstoexcludeexpert
9) howwasexpertcompensated
10. Probebias.
1) percentageofworkdoneforplaintiffsonly/defendantsonly
2) priorworkforpartyinthiscase
3) priorworkforcounselinthiscase
11. PublicationHistory.
a. doesexpert'sreportlistallpublicationsinthelast10years
b. whichpublicationsaregermanetoexpertsworkinthiscase
c. anypreviouspublications(beforethelast10years)germanetoexpertsworkinthiscase
foreachpublicationidentified
1) didanyotherpublicationorjournalrejectthepublication
2) wasthepublicationpeerreviewedbywhom,anycommentsduringthepeerreview
process,anyrevisionsresultingfromthepeerreview
3) draftsretained
4) anythinginthearticlethattheexpertnowwantstochangeorrevise
5) whatcausedexpertsinterestinarea
6) summarizepublicationthesisorcontent
7) furtherresearch
a) didpublicationidentifyany
November13,2015
Page|9
b) wasthereaneedforany
c) hasanyfurtherresearchbeendone
8) isexpertfamiliarwithanyliteratureexpressingcontraryviewsorreachingcontrary
findings
9) anycompensationforauthoringpublication
12. PersonalInformation.
a. Name
b. homeaddress
c. businessaddress
d. currentemployer/company
1) identityofemployer
2) natureofbusiness
3) employer'saffiliationswithparties
4) howlongemployedthere
5) jobtitlesandduties
6) organizationalchart(howmanypersonnel,doingwhat)
7) expertsreportingrelationships(upanddown)
8) usualhourlyratebilledbyemployerforexpertservices
9) usualhourlyratepaidbyemployertoexpertforexpertservices
10) anydocumentretentionpoliciesregardinglitigationmatters
11) memberofanyprofessionalorganizations
13. Education.
a. foreachcollegeandgraduateinstitution
1) yearsattended
2) majororconcentration
3) degree
4) subjectivethesisordissertation
5) anycoursesin___
6) honors,prices,fellowships,etc.
b. professionalseminars,continuingeducation,etc.
November13,2015
Page|10

14. LicensesAndCertifications.
a. issuingAuthority
b. anytestsortraining
c. Datesissued
d. Periodicityofrenewal
e. requirementsforrenewal
f.
anydisciplinaryactions,revocations,etc.
November13,2015
Page|11
ATTACHMENT 1
James Lackritz, 10/19/2015

Olvera v. El Pollo Loco
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE - CIVIL COMPLEX CENTER
ELLIOTT OLVERA, an
individual, on behalf of
himself and on behalf of all
persons similarly situated,
)
)
)
)
) Case No.
Plaintiff,
) 30-2014-00707367-CU) OE-CXC
vs.
)
)
EL POLLO LOCO, INC.; and
)
DOES 1 through 50,
)
inclusive,
)
)
Defendants.
)
______________________________)________________________
DEPOSITION OF JAMES LACKRITZ

La Jolla, California
Monday, October 19, 2015
Volume I
Reported by:
Lisa Day
CSR No. 12960
ADVANCED DEPOSITIONS
www.advanceddepositions.com | 855.811.3376

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things, let me mark a few things; okay? So let's mark

as Exhibit 2 the disc that we've talked about that has
the data documents information on it.
(Exhibit 2 was marked for
identification and was attached
hereto.)
MR. HARDIN: And let's mark as Exhibit 3 the
Declaration of James R. Lackritz in Support of Motion
for Class Action.
hereto.)
BY MR. HARDIN:
Q And my understanding is this is the
supplemental declaration, but please confirm that when
it's put in front of you.
A Yes, appears to be my supplemental
declaration.
Q My understanding of the supplemental
declaration is that it includes everything that your
original declaration had plus several additional
statements or opinions in thereto; is that correct?
A Yes.
Q So if we talk about the supplemental, that
encompasses the original and more; right?
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A The assumptions I made was that the initial

class list that was provided to me was appropriate for
generating the 250 identifiers, there were no names on
my class list, for the people that were going to be
selected for the analysis, and that the information
provided from defendants to Mr. Lietzow was accurate,
and that Mr. Lietzow has given me the totality of his
data and his analysis.
Q Your assumptions are, number one, that the
class list was, as you say, appropriate for searching
for the 250 identifiers to be used as people selected
in the analysis?
A Yes.
Q You also assume that the information that
defendants gave to Mr. Lietzow was accurate?
A Yes.
Q You also assume that Mr. Lietzow has given you
the totality of the data and analysis that he
performed; is that correct?
A Yes.
Q Did you also assume that Mr. Lietzow's
analysis is correct?
A Yes.
Q Did you assume that Mr. Lietzow's definition
or understanding of overtime is correct?
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A Yes.
Q And then now that we've marked the disc as
Exhibit 2, just confirm that the disc marked as
Exhibit 2 contains all of the data, information, and
documents that you generated and/or relied on as part
of your work on the case?
A I believe it should.
Q Okay. Focusing on your declaration,
Exhibit 3, does that contain all of your opinions that
you've generated in this case so far?
A To this point, it does.
Q Does that declaration contain all data,
information, or material that you relied on in reaching
your opinions in this case?
A Can you read that back?
(Last question read.)
THE WITNESS: The declaration itself does not
contain all the data and information. It's based upon
all the data and information that I've been provided
and -- and is on the CD that I brought for you today,
which is Exhibit 2.
BY MR. HARDIN:
Q Okay. Sir, what assumptions did you make in
doing your analysis in reaching your opinions in this
case?
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A Yes.
Q Did you make any allowance in your analysis
for Mr. Lietzow's analysis being incorrect or
incomplete?
A At this point, I have not.
Q Not a single one?
A No.
Q You assumed that everything that Mr. Lietzow
has done and concluded is correct?
A Yes.
Q You assumed that all of Mr. Lietzow's
assumptions were correct and reasonable?
A Yes.
Q You assume that all of Mr. Lietzow's
conclusions were perfect?
A I wasn't assuming they were perfect since I
had his data. I was drawing my conclusions based upon
the data that was provided to him, but I would believe
that his conclusions should be appropriate.
Q Do you believe his conclusions are perfect?
A I would have to talk to him about it. I have
no reason to doubt his conclusions.
Q What is your area of expertise in this case?
Statistician?
A I am a statistician, correct.
8 (Pages 26 to 29)

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Q Statistical expert?
A Yes.
Q What is Mr. Lietzow's area or areas of
expertise in your understanding?
A My understanding is he works for an accounting
firm, so he does things related to accounting and
economics.
Q As a statistician in this case, did you take
it upon yourself to vet and analyze all of
Mr. Lietzow's assumptions and conclusions in this case
or did you just take it and assume it was accurate?
A I assume that the data he provided me was
accurate, and -- and my work is based upon the data
that he provided to me.
Q And you assumed his conclusions were accurate?
A Yes.
Q You didn't go in and try to double check any
of his conclusions, did you?
A No, I did not.
Q You didn't go in and try to double check
Mr. Lietzow's reasoning, did you?
A No, I did not.
Q You just assumed that it was correct?
A Yes.
Q To the extent Mr. Lietzow's reasoning or his
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Mr. Lietzow's analysis would be his declaration and the

exhibits to that; correct?
A Yes.
Q Plus the Excel file you talked about
regarding -- it had the names of employees, hours, and
things of that nature for these three positions:
Service assistant, clerk, and cashiers?
A His data file had information for all 250
people, not just these three -- not just the people
within these three service positions.
Q Okay. But that data file was another basis
for you understanding what Mr. Lietzow concluded;
correct?
A That is correct.
Q And then this list of job classifications he
provided you would be another basis; correct?
A A basis for?
Q For understanding his analysis, if any.
A The job classifications were for the purpose
of my analysis. It wasn't necessary for me to
understand his specific analysis for that.
Q Good point. Sorry about that. Did you have
any separate communications including Mr. Lietzow where
he further elaborated on his analysis or his
conclusions?
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conclusions or both are incorrect, then your analysis

will be incorrect accordingly?
A If that hypothetical situation that you're
discussing would come about, I would need to have more
detail as to what you would specifically be criticizing
or finding wrong with his situation before I could come
to any further conclusions.
Q Have you done other cases in which you've
relied on conclusions of another expert such as an
economist?
A I believe I have.
Q Approximately how many?
A Not very many. Maybe a couple.
Q In those other cases when you're relying on
data of another expert such as an economist, did you,
as part of your analysis, make any allowance for that
expert being wrong?
A My -- when I've had situations like that, my
instructions with attorneys have been to assume that
the data that I was provided was accurate and
appropriate.
Q And that's what the attorneys told you in this
case as well?
A Yes.
Q The basis for your understanding of
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A No, none -- none passed what we had previously

discussed in that one phone call.
Q Have you worked on any other case in which
Mr. Lietzow was an expert?
A Not prior to this one.
Q Did he get you involved in this case or vice
versa?
A No.
Q Were you contacted by counsel?
A I was originally contacted by counsel.
Q Have you worked as an expert with counsel -plaintiff's counsel in this case on any other matters?
A Yes, I have.
Q Approximately how many?
A I would have to look at my CV to give you an
exact number. Your -- your documents request, I
believe, requested in the last five years, and I think
there were either -- and, again, I'd have to look,
either four or five cases in the past five years.
Q Going back more than five years, do you
believe there may be other cases where you worked with
plaintiff's counsel in this case?
A Yes.
Q Can you give an estimate how many others going
back five years?
9 (Pages 30 to 33)

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A It's going to be truly an estimate, but, like

I said, if you put the CV in front of me, I can count
them directly. 15 to 20 maybe.
Q Has plaintiff's counsel ever contacted you
about a case and asked you to work for them and you
declined the engagement?
A I don't believe so.
Q So they're batting a thousand with you?
A I believe that I -- when they have requested,
I have been working with them. If that's batting a
thousand, if that's your definition, then...
Q I think that's batting -- you've written about
baseball, too; right?
A Yes, I have.
Q You did read Mr. Lietzow's declaration?
A Briefly, yes.
Q Did you read the exhibits that he attached to
his declaration?
A I didn't read all of them. I scanned some of
the data.
Q In scanning those exhibits, did you come to -A I'm sorry, I scanned them as opposed to
computer scan.
Q Eyeball scan. That's what I assumed.
A Okay.
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A I'm relying on his data as part of the work.

Q You're relying on his conclusions, aren't you?
A I'm -- I'm basically offering the opinion that
I believe that the -- that the conclusions that I'm
reaching make the class certifiable.
Q Isn't it true that you're relying on
Mr. Lietzow's conclusions being accurate as well?
A I'm relying on his data being accurate for
what I did, and I would assume -- I'm assuming his
conclusions would be accurate as well.
Q You're assuming that all of Mr. Lietzow's
conclusions are correct; right?
A I think that's -- yeah, I'm making that
assumption.
Q So given that you're assuming all of
Mr. Lietzow's conclusions are correct, what assumptions
do you understand Mr. Lietzow to be making to reach
those conclusions?
MS. MUKHERJEE: Objection. Lacks foundation,
calls for speculation.
You can respond.
THE WITNESS: I'm speculating because I
haven't had that discussion with him specifically.
BY MR. HARDIN:
Q Can you tell from his declaration and the
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Q When you looked at these exhibits -- or

eyeball scanned the exhibits to Mr. Lietzow's
declaration, did you come to an understanding as to
what information was contained in each exhibit to his
declaration?
A I believe I had a -- an understanding of what
he was doing to -- to -- in order to form his opinions.
Q But you didn't double check any of his work?
A I did not.
Q Did you have any -- sorry -- questions or
concerns regarding any of the assumptions that
Mr. Lietzow was making in his analysis?
A I did not.
Q Based on your understanding of Mr. Lietzow's
analysis, what assumptions is he making to come to the
conclusions that he reached?
A I don't want to put words in his mouth because
we haven't had that discussion. My understanding is
his deposition is tomorrow, I believe, so you'll have
an opportunity to ask him about his assumptions. I
never -- we never had the discussion specifically about
his assumptions, so I don't want to state that I know
his specific assumptions.
Q But you are relying on Mr. Lietzow's opinions
as part of your work in this case; correct?
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exhibits attached thereto whether Mr. Lietzow is making

any assumptions regarding facts or information in this
case?
A I didn't read it specifically to try to gather
that kind of opinion -- to make that type of opinion.
I read it more to try to get an understanding of the -how -- how did he -- or what's the data that he
actually used to be able to get to those final numbers.
Q Based on Mr. Lietzow's declaration and the
exhibits attached thereto, can you identify any
assumptions that you believe he's making to reach his
conclusions?
A At this point, no.
Q But you did read his declaration?
A I briefly read through it, so I could get a
feel for what he had done.
Q You said "briefly." How long did you spend
reviewing and analyzing Mr. Lietzow's declaration and
exhibits?
A Reviewing? I read through the declaration
just to see what his conclusions were. I looked at
the -- the exhibits and the data that was there. I
didn't spend an inordinate amount of time on it.
Q Approximately how much time did you spend?
A Totally, probably less than an hour.
10 (Pages 34 to 37)

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Q Can you identify a single assumption

Mr. Lietzow makes in his work in reaching his
conclusions?
A At this point, not without going back and
rereading his specific declaration to see if there's
anything in there which I would identify. Otherwise at
this point, no.
Q Does Mr. Lietzow assume that every El Pollo
Loco employee within this class definition who starts
working a closing shift continues to work until the
final alarm log time from the open and close report is
entered?
MS. MUKHERJEE: Objection. Calls for
speculation. To the extent it calls for a legal
conclusion, you can respond.
THE WITNESS: I -- I can't give you an opinion
one way or the other on that without either talking to
Mr. Lietzow or going back and rereading through his -his declaration to see if that information is contained
within his declaration.
BY MR. HARDIN:
Q As you sit here today, do you know one way or
the other whether Mr. Lietzow is assuming that every El
Pollo Loco employee who starts working a closing shift
continues to work until basically the building is
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Q Let's say a given restaurant and let's say a

closing shift starts at, what would it be, 4:00 in the
afternoon or so.
A Okay.
Q How many employees generally are set to begin
working a closing shift roughly?
A At this point, I can't -- I can't tell what
you that number would be.
Q Do you know whether it's roughly two
employees? Four employees? Ten employees?
A It's possible at some point that may have been
part of my discussion with Mr. Bhomik, but I don't
believe I -- I -- I don't recall specifically a
specific number.
Q And you can't give a relatively accurate
estimate?
A I would be speculating.
Q Do you know if Mr. Lietzow is assuming that
every employee who starts working a given closing shift
continues to work until the building is actually closed
according to these final alarm logs?
A Unless he said it in his declaration and I had
an opportunity to reread his declaration, I can't -- I
can't answer that. Not I can't answer, I can't offer
an opinion.
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closed according to the final alarm logs in the

open/close reports?
MS. MUKHERJEE: Same objections.
You can respond.
THE WITNESS: At this point, I cannot -- I'm
not in a position to offer an opinion.
BY MR. HARDIN:
Q Do you know roughly how many El Pollo Loco
employees generally start working a closing shift that
are the subject of this motion for class certification?
A I'm sorry, can you either repeat that or have
the court reporter read it back?
Q Sure. I'll clarify. In this case, as you
indicated, at least a focus of this motion for class
certification is employees who work closing shifts at
El Pollo Loco restaurants; correct?
A That's my understanding.
Q Focusing on a given restaurant, do you have an
understanding as to roughly how many employees start
working a closing shift at an El Pollo Loco restaurant?
A When you say "start working a closing shift,"
that means from the day that they're hired or -Q No, no.
A I'm struggling with that "start working"
semantic.
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Q You don't know if he said that or not?

A I don't know.
Q You don't know if he's assuming that. Do you
have any understanding yourself as to what percentage
of employees who -- who began working a given closing
shift at El Pollo Loco restaurants during the class
period proposed continued to work until the building is
closed?
A I do not.
Q Do you know whether it's 100 percent?
50 percent? 10 percent? You don't have an estimate?
A That's a discussion I would need to have with
either attorneys or Mr. Lietzow.
Q And you don't know what percentage, if any,
Mr. Lietzow is assuming or concluding?
A Again, if it's in his declaration, I would
know it if I went back and reread it. Otherwise, I
don't know.
Q Do you know what level of employee or what
positions at El Pollo Loco have access to the codes to
open the buildings or close the buildings at their
facilities?
A I don't believe I do.
Q I'll put it another way: Do you have an
understanding as to what level of employee or what job
11 (Pages 38 to 41)

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titles at El Pollo Loco have authorization to close

down the El Pollo Loco buildings or facilities at the
end of shifts?
A I don't believe I do.
Q Have you ever asked for that information?
A No, I've not.
Q Is Mr. Lietzow assuming that all employees who
work closing shifts at El Pollo Loco restaurants during
this proposed class period work the shift and then all
of them work after clocking out?
MS. MUKHERJEE: Objection. Calls for
speculation, asked and answered.
You can respond.
THE WITNESS: I can't offer an opinion without
going back and rereading his declaration or discussing
with him or attorneys.
BY MR. HARDIN:
Q Is Mr. Lietzow assuming that all employees who
work a given closing shift at El Pollo Loco during the
class period all leave together and leave the building
together when it's locked?
MS. MUKHERJEE: Objection.
Go ahead if you want.
THE WITNESS: Again, I'd have to go back and
see if it's in his declaration.
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lot of data on this and several hundred pages after

that.
Is this Exhibit F something that you reviewed
as part of your work to understand what Mr. Lietzow
did?
A I had -- I had looked at it.
Q Generally, what -- how does this Exhibit F
work in your understanding?
A There's been a -- I don't know how much of
this originally was given to him and how much he
created, but this appears to come off of some time -time card program, and he has created -- I don't want
to say he has created, but in this, by each employee on
a given day, there is a list of -- at the end two
columns that say, "unpaid hours and unpaid wages."
Q Do you know how Mr. Lietzow arrived at the
unpaid hours and unpaid wages entries?
A Again, if it's in the body of his declaration,
I could go back and read it and find it and that would
be my opinion as to how he did it. If it's not in his
declaration, I would only be speculating.
Q Sitting here today without looking at his
declaration, do you know how Mr. Lietzow arrived at the
unpaid hours and unpaid wages?
A I would only be speculating.
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MR. HARDIN: Let's mark as Exhibit 4 the

Declaration of Eric Lietzow in Support of Motion for
Class Certification with Exhibits.
hereto.)
BY MR. HARDIN:
Q Take your time and look at that. I'm just
going to ask you some general questions about it first.
A Okay.
Q Is Exhibit 4 the declaration of Eric Lietzow
with exhibits that you reviewed and relied on as part
of your work in this case?
A I believe so.
Q Can you go to Exhibit F as in Frank?
A Okay. Yes, I have that.
Q Okay. If I could help you out here, I'm going
to stand up. This is a two-side exhibit, by the way,
so I'm going to -- I'm an expert paper-pusher here
after 15 years.
So looking at the beginning of Exhibit F, it
says, "Analysis of Matched Closing Shift Data."
Do you see that?
A I do.
Q The type is somewhat small because there's a
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Q Do you know how to read Exhibit F in front of

you to determine how he arrived at the unpaid hours and
unpaid wages?
A I can read Exhibit F. It appears that, yes,
he -- it appears that there is a methodology to how he
made that calculation.
Q And what is it?
A Well, from my opinion it looks like he takes
the difference between the -- the clock out final time,
which is about the one, two, three, four, fifth column,
and the -- the open/close logout time, which is two
columns over, and takes the difference and how many
minutes that is or how many hours that is and makes
that calculation to put in that second-to-last column
where it says, "unpaid hours." And then takes the
unpaid hours, multiplies that by his hourly rate, which
is in about the sixth column, to get the unpaid wages
in the final column.
Q Do you have any opinion one way or the other
whether that's a sound approach for determining the
unpaid hours/unpaid wages in this case?
A I don't have an opinion on that.
Q You're relying on him doing it in a way that's
reasonable and accurate?
A I have reason to believe he would have done it
12 (Pages 42 to 45)

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in an appropriate way.
Q Why do you have reason to believe that?
A As a professional opinion, I've worked with
this law firm for many years and I would make the
assumption that they were giving him appropriate
instructions as to what was legally appropriate to be
doing in a situation like this. Or alternatively that
he offered an opinion as to how it should be done and
they concurred with it.
Q That's an assumption you're making, that's not
something you verified yourself; correct?
A I did not verify that.
Q Looking at the third column from the right,
which has "open/close user_name," do you see that?
A I do.
Q Do you know who these people or initials are
that are identified in this column?
A I do not specifically know who they are.
Q Do you know whether all of those letters,
names, or numbering indicated are all personnel of El
Pollo Loco?
A I would assume so, but I'm speculating on it.
Q Is that something that Mr. Lietzow assumes,
specifically that all of the names, initials,
indicators, numbers in the "open/close user_name"
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Do you see that?

I see that.
Go further to the right, "0-10-Mariah."
Do you see that?
A I see that.
Q And then going down throughout this exhibit
hundreds of pages, there's every row having an
open/close logout time; right?
A It appears -Q I'll represent that that's the case -A Thank you.
Q -- in my understanding.
A Thank you.
Q You don't have to look at all. What if it
turned out that 10 percent or more of these open/close
logout times were actually entries made by third
parties that were dealing with building maintenance or
deliveries or things like that rather than El Pollo
Loco managers or employees closing down the building?
Would that affect your conclusions at all, sir?
A At this point, it would not affect my analysis
specifically; but if such was the case and a discussion
with counsel ensued based upon what they told me if I
thought it was appropriate to make any adjustments or
further analysis or whatever, then I would obviously
A
Q
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column are all personnel of El Pollo Loco?

A I would only be speculating if I offered
opinion on that.
Q What if it turned out that a certain
percentage of these open/close logout times were
actually entries made by third parties, vendors, things
like that, would that affect your analysis in this
case?
MS. MUKHERJEE: Objection. Incomplete
hypothetical.
You can respond.
THE WITNESS: It wouldn't affect my analysis
specifically. We're working based upon the data that's
been provided. And like I said, I'm assuming El Pollo
Loco was providing accurate data for the purposes of
both Mr. Lietzow and myself to be able to do our
analysis and draw your conclusions and opinions.
BY MR. HARDIN:
Q The way you look at Exhibit F in front of us
here, you see the column kind of in the middle, I think
you focused on it earlier, open/close logout time.
Do you see that?
A I see that.
Q The first entry there, it says, "6912,
12:22 a.m. closing by user."
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consider doing so.

Q Let's just say hypothetically that of these
open/close logout time entries, 10 percent of those
were made by third-party contractors relating to
deliveries or facilities' maintenance, how would that
affect your analysis?
MS. MUKHERJEE: Objection. Incomplete
hypothetical.
You can respond.
THE WITNESS: At this point it wouldn't affect
it until discussions took place as to being able to
identify specifically which ones would be within that
10 percent and identifying them and determining if
there was a need to go back in and revisit or do any
further analysis.
BY MR. HARDIN:
Q Let's say there's 10 percent of these entries
that were made by third-party contractors relating to
deliveries or facilities' maintenance. Wouldn't those
entries have to be excluded from the analysis?
MS. MUKHERJEE: Objection. Lacks foundation,
calls for speculation, incomplete hypothetical.
To the extent it calls for a legal conclusion,
you can respond.
THE WITNESS: Until a further discussion takes
13 (Pages 46 to 49)
ATTACHMENT 2
Eric Lietzow, 10/20/2015

FOR THE COUNTY OF ORANGE-CIVIL COMPLEX CENTER
ELLIOTT OLVERA, AN INDIVIDUAL,

ON BEHALF OF HIMSELF AND ON
BEHALF OF ALL PERSONS SIMILARLY
SITUATED,
Plaintiff,
Case No.
30-2014-00707367-CUOE-CXC
vs.
EL POLLO LOCO, INC.; AND DOES
THROUGH 50, INCLUSIVE,
Defendants.
__________________________________
DEPOSITION OF EXPERT
ERIC RODNEY LIETZOW
Tuesday, October 20, 2015
10:04 a.m.
4100 Newport Place Drive, Suite 800
Newport Beach, California
REPORTED BY:
Jessica Sanicola
CSR No. 12421

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opinions and conclusions in this case set forth in

Exhibit 3, your declaration?
A. Yes.
Q. All the material that you rely on, the
factual information is identified or explained in your
declaration, Exhibit 3?
A. Correct.
Q. All of your reasoning, how you got from point
A to B to C to your conclusions, that's all set forth
in your declaration, Exhibit 3?
A. I believe so.
Q. Have you personally interviewed any punitive
class members or the plaintiff himself?
A. No, I have not.
Q. Have you read or reviewed any depositions?
A. No, I have not.
Q. That includes any excerpts from any
depositions.
A. I have not.
Q. Have you read or reviewed any declarations in
this case?
A. No, I have not.
Q. Are you aware whether or not plaintiff's
counsel has obtained any declarations from class
members to submit to the court?
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A. I don't know if I would say everyone who

started a closing shift because I don't know how that
is defined by the company itself. I assumed in this
analysis anyone who has clocked in at 11 p.m. or later
was part of the closing shift who was there until the
store closed.
Q. So that's a clear assumption you made that
everyone who worked from 11 p.m. or later was part of
the closing shift and worked until the building code
indicated it closed.
A. Correct.
Q. So if there's a clock-out at 11 o'clock p.m.,
that's someone that you would include in your
assumption that they worked until the building code
indicated the building closed.
A. That's correct.
Q. What if they clocked out at 10:59 p.m.?
A. They were not. In my analysis, they were not
included in it as a closing person.
Q. 11 o'clock p.m., they are included; 11:01,
midnight, 1, 2, they're all included?
A. Correct. Before 11 o'clock, not included.
Q. So anyone who clocked out before 11 o'clock
p.m. is not included in your analysis, correct?
A. That is correct.
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A. No, I am not.
Q. You don't know either way?
A. No, I -- the information was provided to me
directly from counsel.
Q. They told you?
A. They told me.
Q. What did counsel tell you in that regard?
A. They told me that the basis of this case was
people that were working the closing shift generally
would clock out and then had to stick around until the
manager closed the location and then everyone left
together.
Q. Based on that, you assumed that that was
correct?
A. Yes.
Q. So based on plaintiff's counsel talking to
you and sharing with you information, you assumed that
everyone who started working the closing shift would
wait until the building would close at the end of
their shift and leave then?
A. Correct.
Q. And you assumed that everyone who started
working at closing shift, they would all be working
off the clock until the building closed and they would
go out together?
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Q. Do you have a general understanding as to how

the shifts -- the closing shifts at El Pollo Loco
work?
A. In what regard?
Q. How many employees at a restaurant generally
start working at a closing shift.
A. Based on -- I was -- one of the items I was
provided was a series of schedules for two days in
February, I think, of 2014. Based on those scheduled
times for, I think, 135 locations, the stores
generally close between 11 p.m. and 1:30 a.m. I don't
think there was a single one that closed before 11,
and there were very few times, if any, that they
closed after 12:30 p.m., from what I remember. But
that is my general understanding. That's the only
understanding I have is based on those schedules that
I was provided.
Q. For two days in February?
A. I believe that's what it was.
Q. What year?
A. Let me take a look at my -Q. Yeah, take a look.
A. -- report because I stated that. It was
February 24th, 2015 and February 25th, 2015.
Q. Okay. Do you have any understanding as to
7 (Pages 22 to 25)

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roughly how many employees El Pollo Loco generally

schedules or starts working at closing shift?
A. Once again, starts closing, I do not know. I
have some analysis of, once again, those schedules
which I have some notes on. And generally my -- from
what I observed in those schedules for those two days,
each of the stores, there's generally ten to 12
employees per store with a median of -- oh, no, that
was ten to, I think, 22 with a median of 15. And
between 11 p.m. and 12:30, the people working, there
were between two and eight employees per store
schedule that had people still working between 11 and
12:30 a.m. with a median of five.
Q. Okay.
A. That -- and, once again, that's based on
those schedules that I received. And I believe I
described that in paragraph 7 of my declaration.
Q. Okay. As part of your analysis, you assume
that any El Pollo Loco employee who was working as of
11 p.m. or later, that every one of those employees
would continue to work off the clock even if they
clocked out until the building would close?
A. That was the assumption I used, yes.
Q. Plaintiff's counsel told you to assume that?
A. Yes, yes.
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you said that approximately 800 entries or so, the

final clock-out time for an employee was after the
final alarm code time?
A. That I identified, correct.
Q. Are those approximately 800 instances, are
they still included in Exhibit F or were they removed
by you?
A. They are included in Exhibit F.
Q. Can you find an example for me?
A. Let's see. Let's start at the beginning. I
mean, I just want to point out, some of the ones -some of these 800 or so that I refer to, there was no
actual clock-out time found. There was an opening
time, you know, between 7, 8 in the morning, and there
was no clock-out time. Whether it was removed because
it is one of those codes or there just wasn't a
clock-out time, I did no notice that in some
instances, but I'm trying to find -- here's one on
page 4 of Exhibit F.
Q. Okay.
A. About halfway through the -- down the page,
just a little less, on November 6th, 2010 for
Christopher Armas.
Q. Okay.
A. He had a final clock-out time of 12:04 a.m.,
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Q. As part of your analysis, did you assume that

all such employees who worked at an El Pollo Loco
restaurant as of 11 p.m. or later, that they would
then work off the clock and then leave the building
all at once when the building was closed down?
A. That is my understanding.
Q. That's based on what plaintiff's counsel told
you to assume?
A. Correct.
Q. Are you aware of any facts that support those
assumptions?
A. No.
Q. The alarm codes that you included in your
Exhibit F to your declaration -A. Yes.
Q. -- all the ones that are in Exhibit F you
counted as off-the-clock time, correct? Take a look
if you want to.
A. I know there were on -- in Exhibit F, there
were somewhere over 800 times where the final
clock-out time that I -- or the final alarm close time
that I identified was earlier than the latest clock -time punch time for a given employee, which obviously
for those records, I assumed zero off-the-clock work.
Q. Okay. I was wondering about that. I believe
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but the latest closing time that I found was 11:16

p.m. the night before.
Q. Right. So for this one, his final clock-out
time, Mr. Christopher Armas, was 12:04 a.m., but the
building code -- closing building code was 11:16 p.m.
A. Correct.
Q. For those situations, you would just treat it
as zero?
A. Correct.
Q. Do you have an understanding as to why that
would happen in fact?
A. I have no idea why that would happen.
Q. And those approximate 800 or so, they're just
included in your analysis with zero unpaid time?
A. Correct. It's possible there was an -- there
was an actual later closing, like -- as I said, there
were many times where there were multiple open and
close events during a day. There were times when I
would see an 11 p.m. closing and then another one at
12:30 with another open and then close. So I don't
know. I don't understand the alarm system well enough
to know why a situation like this would occur.
Q. Okay. When there were multiple alarm codes
for closing, let's say, after 11 o'clock p.m. at a
restaurant, you would always pick the last one?
8 (Pages 26 to 29)

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you referred to earlier?

A. Yes.
Q. And based on those two days, you reached the
conclusions noted at the bottom of paragraph 7?
A. Correct.
Q. But you don't know when the, quote, "closing
shift," end quote, when that's supposed to start?
A. No. And from my analysis of that schedule,
there were various times between the different stores
within a certain range, but the -- and there were
staggered shifts throughout the day, so that's why I
focused on the end points, the latest end points
within the days.
Q. That last sentence of paragraph of 7, it
says, "Additionally, employees worked varying shift
lengths, ranging generally from four and eight hours."
A. Yes.
Q. Although some shifts were scheduled for fewer
or greater hours than four and eight?
A. Correct. On occasion. I noticed a handful.
Q. So what if an employee started working a
shift at 8 o'clock p.m. and then clocked out at 10:30
p.m.? You wouldn't count that employee in your
analysis as someone working the closing shift?
A. Correct.
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that, do you?
A. No, I do not.
Q. You don't have any testimony from this case
to support that?
A. No.
Q. Last sentence of paragraph 8, it says, "For
this analysis, I have utilized the final alarm log
time from the open/close reports for each day as the
time when employees who were on the closing shifts
actually exited the store." Right?
A. Yes, I see that.
Q. So you used the final alarm code log time, as
defined and discussed herein, as a proxy for when
every employee working the closing shift stopped
working and left the store?
A. Correct.
Q. But you have no evidence to support that?
A. No factual evidence was provided to me,
correct.
Q. Does that trouble you at all?
A. Not particularly.
Q. Why not?
A. I generally believe what my -- what my client
is telling me, so I use those assumption as were
provided.
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Q. Even though that person may have started a

closing shift?
A. Correct.
Q. Do you know how often that may have occurred,
that an employee, under El Pollo Loco's terminology or
understanding, would start working a closing shift but
didn't work until 11 p.m. and, therefore, wouldn't be
included in yours?
A. No, I don't know the frequency of that
occurring.
Q. Paragraph 8 starts with, "The overriding
assumption used in this analysis was that employees
who worked during the closing time shifts clocked out
of the system before they were finished with their
duties and before they were able to leave the store."
Do you see that?
A. Yes, I do.
Q. This overriding assumption or assumptions
referenced in paragraph 8, those are things that you
assumed?
A. Yes.
Q. Based on what plaintiff's counsel told you to
assume?
A. Correct.
Q. You don't have any facts or data to support
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Q. And the client here is plaintiff's counsel or

the plaintiff?
A. Plaintiff's counsel in this case.
Q. When this plaintiff's firm engages you on
this and other cases, do you consider the firm the
client?
A. Generally that is our primarily contact, so
yes.
Q. You've never spoken with Mr. Olvera the
plaintiff, have you?
A. I have not.
Q. So you're not troubled by this assumption, or
these assumptions in paragraph 8 because you basically
have faith in plaintiff's counsel?
A. Correct.
Q. Any other reason why you're not troubled?
A. No.
Q. Did you ever ask for any information or data
to support the assumptions in paragraph 8?
A. Nothing more than I've already discussed.
Q. If you didn't assume that the closing shift
employees all uniformly worked off the clock until the
open -- or the close report, the latest close report
that you identified, how would you try to identify
which employees worked off the clock?
11 (Pages 38 to 41)

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A. I do not believe there's any other -- I mean,

we were not provided data that shows anything per
employee past their final clock-out time. So without
some other data, I don't know if there's data out
there that would even show that.
Q. So if you didn't assume that every closing
shift employee worked until the final close report, do
you have any idea how you would have determined what,
if any, off-the-clock work each employee performed?
A. Well, unfortunately the only data provided by
El Pollo Loco was their time punches, so there was no
data provided by El Pollo Loco showing work done after
clock-out. So use of this assumption was the only
reasonable method for determining this.
Q. Right. And if you didn't use this assumption
that everybody on the closing shift worked until the
final close report, do you have any idea how you would
have tried to determine whether these employees worked
off the clock and how much?
MS. MUKHERJEE: Objection; incomplete
hypothetical, lacks foundation, calls for speculation,
and to the extent it calls for a legal conclusion.
You can respond. Thank you.
THE WITNESS: Please repeat that question?
MR. HARDIN: Can you read it back? I kind of
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Q. But you didn't do that here?

A. No.
Q. Did you ever ask for that information here?
A. I'm trying to remember back to when we
started this. I believe at the time when we started,
I asked for any information regarding this, and I was
told to use the assumptions as is.
Q. Other than the assumptions you made,
identified in paragraph 8 that we've discussed, and
another approach in which information from the
plaintiffs or class members are obtained, can you
think of any other way here in which you could have
tried to determine how often each employee worked off
the clock and how much?
A. As I sit here, no.
Q. So if your overriding assumption that you
reference in paragraph 8, if that is incorrect, do you
have any idea how you or anyone in this case could
determine when, how often, or how much any El Pollo
Loco employee worked off the clock on the closing
shift?
A. It would depend on what -MS. MUKHERJEE: Objection -THE WITNESS: I'll let you go, Piya.
MS. MUKHERJEE: Objection; incomplete
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liked it, actually.

(Record read)
THE WITNESS: Without actually receiving data
from the defendant, I assume we would need additional
information from the actual plaintiffs, whether on a
daily basis or averages.
BY MR. HARDIN:
Q. Have you ever done that sort of approach on
any other case?
A. There have been cases where we have -- where
plaintiff's counsel has prepared questionnaires for
plaintiffs, and based on the responses to the
questionnaires, we've used those results in our
analysis.
Q. You didn't do that here, though?
A. No. And we were not provided questionnaires
and we don't -- our firm does not design and generate
questionnaires ourselves.
Q. So one other option, other than the
assumption you made in paragraph 8, would be to get
information from the plaintiffs, questionnaires,
declarations, deposition testimony, to -- based on
that to get some understanding as to how often people
worked off the clock, right?
A. That is a possibility, yes.
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hypothetical. That's it. Thank you.

THE WITNESS: It would depend on what other
information I received, too, that would -- I would
consider to alter that assumption.
BY MR. HARDIN:
Q. To date, you've received none, right?
A. Correct.
Q. So sitting here today, other than this
assumption, this overriding assumption you made in
paragraph 8, you have no idea how this information
could be determined in this case?
A. I think I've already answered that to the
extent that if there is other information out there,
if I was provided it, I would consider that. But I
have not seen any other information to have me change
the assumptions at this point.
Q. You agree that if this overriding assumption
or assumptions in paragraph 8 turn out to be
incorrect, that your entire analysis is incorrect?
A. If there was some information I received that
changed these assumptions, that would alter the
results of my analysis.
Q. And if it turned out that a small portion of
the closing shift or none of the closing shift
actually stayed until -- strike that.
12 (Pages 42 to 45)
ATTACHMENT 3
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3
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5
6
7
8
SCOTT J. FERRELL (Bar No. 202091)

sferrell@trialnewport.com
JAMES B. HARDIN (Bar No. 205071)
jhardin@trialnewport.com
TYLER J. WOODS (Bar No. 232464
twoods@trialnewport.com
STEVEN R. TELLES (Bar No. 246514)
stelles@trialnewport.com
NEWPORT TRIAL GROUP
895 Dove Street, Suite 425
Newport Beach, California 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
Attorneys for Defendant
CONAIR CORPORATION
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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SEXY HAIR CONCEPTS, LLC
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Plaintiff,
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vs.
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CONAIR CORPORATION,
Defendant
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Case No. 12cv2218-CBM (PLAx)

MEMORANDUM IN SUPPORT OF
DEFENDANT CONAIR
CORPORATIONS MOTION TO
EXLCUDE THE REPORT AND
TESTIMONY OF SURVEY EXPERT
PHILIP JOHNSON
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Counterclaimant,
Date:
Time:
Judge:
Courtroom:
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vs.
Complaint Filed: March 15, 2012
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CONAIR CORPORATION,
June 25, 2012

11:00 a.m.
Hon. Consuelo B. Marshall
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SEXY HAIR CONCEPTS, LLC,

Counterdefendant
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MEMORANDUM IN SUPPORT OF CONAIRS MOTION TO EXCLUDE REPORT AND TESTIMONY OF SURVEY
EXPERT PHILIP JOHNSON
TABLE OF CONTENTS
Page(s)
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I.
INTRODUCTION ................................................................................................ - 1 -
II.
FACTUAL BACKGROUND............................................................................... - 3 -
A.
SHC, Whose Flagship Product Is BigSexyHair, Currently

Sells At Least Six Lines Of Sexy Hair Products Whose
Trade Dress And Colors Have Varied Widely. .......................................... - 3 -
B.
Conair Has Sold the RUSK Overarching Being Line

Since 2001 and Being Sexy Line Since 2008. ........................................ - 4 -
C.
The Being Line Is Marketed And Sold Mainly To

Professional Hair Care Salons, Where Rusk Products Are
Well-Known And The Conditions Militate Against Any
Consumer Confusion. ................................................................................. - 6 -
D.
In Or About March 26, 2012, SHC Filed Its Motion To

Enjoin All Conair Sales Of The New Being Sexy Trade
Dress, Based Mostly On A Survey And Report Submitted
By Phillip Johnson...................................................................................... - 7 -
E.
As Professor Ravi Dhar Establishes In His Declaration, Mr.

Johnsons Report Is Severely Flawed And It Has "No
Value" In Addressing The Likelihood Of Confusion Issue
Posed By SHCs Motion. ........................................................................... - 7 -
F.
A Much Improved Survey Done By Professor Stewart For

Conair Confirmed There Is No Actionable Confusion
Caused By The New Being Sexy Trade Dress........................................... - 8 -
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III.
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MR. JOHNSONS SURVEY AND HIS CONCLUSIONS ARE

SO THOROGHLY DEFECTIVE THAT THEY SHOULD BE
EXCLUDED AS CONTRARY TO DAUBERT AND
IRRELEVANT ................................................................................................... - 10 -
A.
Legal Standard .......................................................................................... - 10 -
B.
Mr. Johnson Made Several Flagrant Factual Errors That

Infect His Entire Survey. .......................................................................... - 12 -
C.
Mr. Johnson Used A Grossly Incorrect Survey Universe By

Ignoring Salons And Focusing On A Fictitious Market For
Being Sexy Products At Mass Market Retailers. ..................................... - 13 -
D.
Mr. Johnson Failed To Approximate Market Conditions In

Many Respects.......................................................................................... - 15 -
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TABLE OF CONTENTS(continued)
Page(s)
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Johnson Failed To Properly Control For The Leading

Nature Of His Survey. .............................................................................. - 18 -
F.
Johnson Improperly Coded His Survey Results To

Artificially Inflate The Confusion Percentages........................................ - 19 -
IV.
JOHNSON HAS BEEN CRITICIZED BY VARIOUS OTHER

COURTS FOR SIMILAR PROBLEMS WITH HIS SURVEYS ...................... - 20 -
V.
PROFESSOR STEWARTS SURVEY RESULTS WHICH

ESTABLISH ESSENTIALLY NO SOURCE CONFUSION
CONFIRM THAT JOHNSONS SURVEY WAS LEADING
AND IMPROPER ............................................................................................... - 22 -
VI.
CONCLUSION ................................................................................................... - 23 -
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E.
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TABLE OF AUTHORITIES
PAGE(S)
2
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FEDERAL CASES
24 Hour Fitness USA, Inc. v. 24/7 Tribeca Fitness, LLC

447 F.Supp. 2d 266 (S.D.N.Y 2006) ....................................................... 2, 21, 22
5
6
Big Ten Conference v. Big Ten Worldwide Concert and Sport Club, 2000 US
Dist. Lexis 22328 (E.D. Mich. 2000) .............................................................2, 20
7
8
9
Brunckhorst Co v. Heilman, 875 F.Supp. 966 (E.D.N.Y 1994) ..........................2, 20

Butler v. Home Depot, Inc., 984 F.Supp. 1257 (N.D. Cal. 1997) ............................11
10
Coherent, Inc. v. Coherent Technologies, 736 F.Supp. 1055 (D. Colo. 1999) ...2, 20
11
Coors v. Anheuser Busch, 802 F.Supp. 965 (S.D.N.Y 1992) ....................... 2, 21, 22
12
Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786
(1993) ..................................................................................................................10
13
14
Franklin Resources, Inc. v. Franklin Credit Management Corp., 1997 WL

543086 (S.D.N.Y. 1997) .................................................................................2, 20
15
Franklin Resources, Inc. v. Franklin Credit Management Corp., 988 F.Supp.322

(S.D.N.Y. 1997) ..................................................................................................21
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General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997) ...........................10
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Juicy Couture, Inc. v. LOreal USA, 2006 WL 1012939 (S.D.N.Y. 2006) .............21
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Juicy Couture, Inc. v. LOreal USA, 2006 WL 2591478 (S.D.N.Y. 2006) .........2, 21
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Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999)...........10
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Lust By And Through Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594
(9th Cir. 1996) ......................................................................................................11
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M2 Software, Inc. v. Madacy Entertainment, 421 F.3d 1073 (9th Cir. 2005) ..........11
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Maryland Casualty Co. v. Therm-O-Disc, Inc., 137 F.3d 780 (4th Cir. 1998), cert
denied, 525 U.S. 827, 119 S.Ct. 74 (1998) .........................................................11
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McNeilab, Inc. v. American Home Products Corp., 848 F.2d 34 (2d Cir. 1988) ....11
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Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254 (2d Cir. 1987) ..........11
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Quiksilver, Inc. v. Kymsta Corp., 247 F.R.D. 579 (C.D.Cal. 2007) ........................11
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TABLE OF AUTHORITIES(CONTINUED)
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PAGE(S)
Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733 (2d Cir. 1994) .................................11
OTHER CASES
Hansen Beverage Co. v. Cytosport, 2009 WL 5104260 ..........................................13
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FEDERAL: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS

Fed R. Evid 702..................................................................................................10, 11
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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
INTRODUCTION
Although defects in a consumer survey usually go to the weight not the
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admissibility of such evidence, here the consumer survey done by Philip Johnson
(Johnson) for Plaintiff-Counterdefendant Sexy Hair Concepts, LLC (SHC) is so rife
with fundamental errors that it does not satisfy basic Daubert standards and should be
excluded as lacking all relevance to the issue of consumer confusion.

First, Johnson has admittedly made several false assumptions regarding the origin
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and relevant market for the Being Sexy product. Johnson incorrectly assumed that
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Being Sexy was a new product that had never been sold anywhere (Declaration of
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James Hardin (Hardin Decl.) 2, P. Johnson depo. at 34:12-36:17), when in fact
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Being Sexy has been sold since 2008 and is part of a larger Being line of products that
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has been sold since 2001. Johnson then compounded his error by incorrectly assuming
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that the Being Sexy product is (or in his mind will be) sold primarily in mass market
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retailers such as CVS, Walmart, and Target (Hardin Decl. 2, P. Johnson depo. at 82:6-
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15), when in fact Being Sexy is sold primarily in salons and related professional hair
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care outlets.1
Second, Johnsons survey methods are unsound, unreliable, and improperly
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leading in many respects. As explained in the declaration of Professor Ravi Dhar, a
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renowned scholar regarding consumer surveys, who is the Director of the Yale Center
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for Customer Insights at the School of Management at Yale University, Johnson: (1)
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failed to survey the relevant universe of prospective purchasers; (2) failed to
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approximate marketplace conditions; (3) failed to properly control for "noise"; and (4)
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improperly counted as "confused" respondents who identified only unprotectable
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Johnson's survey is based on the notion of diverted sales of Being Sexy products to mass-market
retailers such as CVS, WalMart, and Target, but he submits no evidence of any such diverted sales.
(Hardin Decl. 2, P. Johnson depo. at 58:3-22) This is no accident. Conair directs all of its marketing
and sales of the Being Sexy products to salons and other professional hair care outlets, and has an antidiversion policy precluding sales through mass-market retailers. (Russo Decl. filed with Opp. to
Prelim. Inj. Mtn. 14-15)
-1MEMORANDUM IN SUPPORT OF CONAIRS MOTION TO EXCLUDE REPORT AND TESTIMONY OF SURVEY
product attributes (e.g., similar colors, bottle shape) as the reason for their "confusion."2
Third, many other courts have criticized Mr. Johnson's survey designs or
interpretations for being leading or scientifically unreliable based on some of the same
tactics employed here. As discussed below in Section IV, courts have specifically
criticized Johnson's surveys for, among other things, "cherry picking" advertisements,3
failing to replicate market conditions,4 and being improperly leading.5
Fourth, the counter-survey done by Professor David Stewart for
Defendant/Counterclaimant Conair Corporation (Conair) using the same basic
survey method employed by Johnson (i.e. Squirt or "mall intercept" survey) but with a
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more accurate replication of the actual market conditions resoundingly confirms two
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things: (1) there is no measurable confusion caused by Sexy Hairs alleged trade dress;
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and (2) (pertinent to this motion) any purported "confusion" found by Mr. Johnson is
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the result of the noise generated by his own survey design,6 not actual source
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confusion.7
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Prof. Dhar concludes that these flaws are individually significant and collectively fatal, stating as
follows:
In my opinion, each of these flaws, by itself, makes the conclusion reached in the
Johnson report based on the survey unreliable. Taking all these flaws together, it is
clear to me that the Johnson survey has no value in addressing the question about the
likelihood of confusion when prospective purchasers are exposed to the Rusk being
sexy product line as they would be if they were encountered in the marketplace.
(Dhar Report (Ex. A to Dhar Decl.) p. 5, 14 filed with Opp. to Prelim. Inj. Mtn.) (emphasis added).
3 See Brunckhorst Co v. Heilman, 875 F.Supp. 966, 981-82 (E.D.N.Y 1994).
4 See e.g., Big Ten Conference v. Big Ten Worldwide Concert and Sport Club, 2000 US Dist. Lexis
22328, *18-24 (E.D. Mich. 2000); Coherent, Inc. v. Coherent Technologies, 736 F.Supp. 1055, 106668 (D. Colo. 1999); Franklin Resources, Inc. v. Franklin Credit Management Corp., 1997 WL 543086
(S.D.N.Y. 1997); Juicy Couture, Inc. v. LOreal USA, 2006 WL 2591478 (S.D.N.Y. 2006).
5 See e.g., Coors v. Anheuser Busch, 802 F.Supp. 965 (S.D.N.Y 1992); 24 Hour Fitness USA, Inc. v.
24/7 Tribeca Fitness, LLC, 447 F.Supp. 2d 266 (S.D.N.Y 2006).
6 Mr. Johnson has testified in other matters that the Squirt survey methodology generates a lot of
"noise" and many courts have refused to use Squirt surveys for that reason. (Hardin Decl., 2, P.
Johnson depo. at 126:2-5).
7 As Professor Stewart states in the conclusion of this report:
This study indicates that the actual level of confusion of the Rusk 'being Sexy' product
with the sexy hair line of products and its source is negligible. To the extent that any
confusion exists, it is related to general characteristics of the category, professional
salon style hair care products. These characteristics include the type of product, right
colors, varied shapes of bottles and/or cans, and naming conventions that include subbrand names for individual products. . . .
(Stewart Report p. 21 filed with Opp. to Prelim. Inj. Mtn.)
For the reasons set forth herein, Conair respectfully requests that the court issue
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an order excluding the expert report and testimony of Philip Johnson.
II.
FACTUAL BACKGROUND
A.
SHC, Whose Flagship Product Is BigSexyHair, Currently Sells At
Least Six Lines Of Sexy Hair Products Whose Trade Dress And
Colors Have Varied Widely.
SHC makes and sells hair care products under a variety of names that include the
words sexy hair. According to its CEO, SHC is best known for its BigSexyHair
products (Hardin Decl. 3, K. Pitsch depo. at 61:15-62:20), which come in red
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packaging, as shown below:
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(Hardin Decl. 4, Ex. C). The SHC website touts that people recognize Sexy Hair by
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its world famous big red can. (Hardin Decl., 3, K. Pitsch depo. at 61:15-62:20)
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SHC also makes a number of different hair products using names like CurlySexyHair,
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StraightSexyHair, and others, each coming in different packaging. The packages run
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the gamut of colors, ranging from red to light blue to dark blue to silver, as shown
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below.
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(Hardin Decl., 5, Ex. D).

SHC claims in its pending motion for preliminary injunction, and Johnson has
assumed, that SHC has used a uniform "trade dress" for its Sexy Hair product lines
since approximately 2005. (Mtn for Prelim. Inj. 1:12-15; 2:5-6). Specifically, Johnson
asserts that Sexy Hair "uses distinctive trade dress for its products which includes the
following elements: the product line mark running vertically down almost the entire
length of the package; with "Sexy" being presented in lowercase letters; with "Sexy" in
a contrasting color to the other elements, so that it presents a unique and unitary
commercial impression; with the house mark being presented in much smaller type in a
horizontal layout above the product line mark. (Johnson Report, 4).
However, SHC has sold various "sexy" products many of which are still
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available to consumers with trade dress that differs markedly from the trade dress
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described above.
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(Hardin Decl., 6, Ex. E)

B.
Conair Has Sold the RUSK Overarching Being Line Since 2001 and
Being Sexy Line Since 2008.
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The RUSK brand originated in the 1970s, and is used today for a full range of
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professional hair care products (such as shampoo and styling gel) and tools (such as
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hair dryers and straightening irons). The RUSK brand is very well-known in the
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professional hair care product industry, and the RUSK brand name appears prominently
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on every product in every Rusk line, usually in all capital letters, in a bold font, at the
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top of the product packaging. (Simmons Decl. 2-6; Russo Decl. 6)
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Since 2001, one of the product lines sold under the umbrella of the RUSK brand
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is the Being line. The Being line currently includes products named Being
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Smooth, Being Gutsy, Being Warped, Being Wild, Being Undressed, Being Rubber,
Being Primitive, and Being Sexy. The first Being Sexy product, a hairspray, was
added to the line in 2008. (Simmons Decl. 7-8; Russo Decl. 8-9)
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(Russo Decl., Ex. B).
In 2011, Conair began to develop additional hair care products to be sold under
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its existing Being Sexy brand,8 which it had used without objection since 2008. Conair
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developed shampoo, conditioner, mousse, gel, cream, oil, and glitter hairspray to
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complement the existing hairspray. Conair also refreshed the Being Sexy package
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design to coincide with the introduction of the new products, and the new products
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entered the market in early 2012. (Simmons Decl. 9-10; 19; Russo Decl. 9-11).
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The following image shows a side-by-side comparison of the old and new trade
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dress of the Being Sexy brand:
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(Russo Decl., Ex. D).
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The new package design builds upon the old design, which SHC admits is noninfringing.9 It retains the main elements of the original, including the color scheme, the
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Conair also made plans to develop additional products under its Being Smooth brand, and to
introduce a new Being Glamorous brand, both to follow the Being Sexy project. Those plans were
put on hold as a result of this dispute. (Russo Decl. 13)
9 In statements by its Chief Executive Officer in deposition, SHC has admitted that the old Being Sexy
trade dress and the trade dress of the entire Being line of products does not infringe upon the
purported trade dress of the Sexy Hair products. (Hardin Decl. 3, K. Pitsch depo. at 66:9-67:16)
Accordingly, SHC is seeking to enjoin only Conairs use of the new Being Sexy trade dress.
vertical lettering, the lowercase font, use of different colors for Being and Sexy,
and horizontal use of the house brand RUSK.
C.
The Being Line Is Marketed And Sold Mainly To Professional Hair
Care Salons, Where Rusk Products Are Well-Known And The
Conditions Militate Against Any Consumer Confusion.
In or about January, 2012, Conair began selling the Being Sexy line in its
relevant market the professional hair market, meaning hair salons, beauty schools,
and the like. (Simmons Decl. 19). Conair does not sell RUSK products to mass-
market retailers like Target or CVS, nor does it permit its distributors to do so.
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Although RUSK products are occasionally diverted to mass-market retailers, Conair
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maintains a strict anti-diversion policy to prevent diversion as much as possible.
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(Simmons Decl. 15; Russo Decl. 14-16).
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Within the salon-based environment, there are several reasons why consumers are
likely to know that the Being Sexy is affiliated with RUSK and not a competitor.
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First, due to its long and continuous use, the RUSK brand is one of the most
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renowned and immediately recognizable brands in the professional hair care product
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industry. Conair commits significant resources to the education of stylists and salon
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owners about hair cutting and styling, and along with that, the use of RUSK products.
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As a result, hair care professionals whose recommendations SHC admits drive sales of
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hair care products10 are very knowledgeable about RUSK products. (Russo Decl. 20
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22). Moreover, the RUSK brand name appears prominently on every product in the
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RUSK product line, usually in all capital letters, in a bold font, at the top of the product
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package. (Russo Decl. 6).
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Second, industry practice in salons (and mass market retailers11) is to group
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products together by manufacturer and product line. The Being Sexy line is grouped
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Hardin Decl. 3, K. Pitsch depo. at 69:20-70:9

Hardin Decl. 3, K. Pitsch depo. at 82:12-84:19 (SHCs CEO Karl Heinz Pitsch estimates that at
retail stores hair care products are grouped by manufacturer 80% of the time).
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with the larger Being line, which in turn is grouped with other products within the
RUSK product family. Rusk instructs salon employees how to display the RUSK
products, and provides display materials for their use. (Russo Decl.. 17-18; Simmons
Decl. 16). Accordingly, consumers encountering a group of RUSK Being products
(for example, Being Undressed, Being Smooth, Being Gutsy, or Being Sexy) are not
likely to be confused into thinking the Being Sexy product is associated with those of a
competitor, such as BigSexyHair, CurlySexyHair, and HealthySexyHair.
D.
Conair Sales Of The New Being Sexy Trade Dress, Based Mostly On
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In Or About March 26, 2012, SHC Filed Its Motion To Enjoin All
A Survey And Report Submitted By Phillip Johnson.

On or about March 26, 2012, SHC filed its Motion for Preliminary Injunction
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against Conair in this action. (Dckt. # 14). The scope of the motion, and the requested
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injunction, is limited only to the new trade dress of the Being Sexy line. SHC has
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admitted that the old Being Sexy trade dress and the trade dress of the entire Being
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line of products does not infringe on Sexy Hairs alleged trade dress.
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Although Conair has sold Being Sexy product since 2008 and has promoted and
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sold the new Being Sexy trade dress products since late 2011, SHC has no evidence of
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any actual consumer confusion SHC caused by the Being Sexy name or the new trade
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dress. (Hardin Decl. 3 K. Pitsch Depo. 168:15-169:9). In lieu of that, SHC seeks to
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rely on a so-called "Squirt" or mall intercept survey done by Phillip Johnson ("Johnson
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survey"). Based on his own survey, Mr. Johnson concludes in his report ("Johnson
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report") that there is a significant likelihood of confusion caused by Conairs use of the
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Being Sexy name and the new Being Sexy trade dress.
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E.
As Professor Ravi Dhar Establishes In His Declaration, Mr. Johnsons
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Report Is Severely Flawed And It Has "No Value" In Addressing The
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Likelihood Of Confusion Issue Posed By SHCs Motion.
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Professor Dhar is an accomplished scholar who is the Director of the Yale Center
for Customer Insights at the School of Management at Yale University, New Haven
Connecticut. He has concluded that the Johnson survey fails to meet the basic premises
of good survey design for at least five basic reasons (which are discussed below in the
legal section):
(1) failure to survey the relevant universe of prospective purchasers;
(2) failure to approximate marketplace conditions;
(3) failure to expose survey respondents to the products that reflect what
they would see if they were shopping in the marketplace;
(4) failure to use a proper control product to control for "noise"; and
(5) improperly including respondents as indicating confusion even though
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the reasons given by certain respondents were not part of Sexy Hairs trade
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dress.
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(Dhar Report 13, p. 5). These flaws are individually significant and collectively fatal:
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In my opinion, each of these flaws, by itself, makes the conclusion reached

in the Johnson report based on the survey unreliable. Taking all these
flaws together, it is clear to me that the Johnson survey has no value in
addressing the question about the likelihood of confusion when
prospective purchasers are exposed to the Rusk being sexy product line as
they would be if they were encountered in the marketplace.
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(Dhar Report 14, p. 5) (emphasis added).

F.
A Much Improved Survey Done By Professor Stewart For Conair
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Confirmed There Is No Actionable Confusion Caused By The New
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Being Sexy Trade Dress.
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After being served with SHCs motion and Mr. Johnson's survey, Conair
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commissioned Professor David Stewart on short notice to conduct a similar survey
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using the same method (i.e. Squirt survey) but with a more accurate replication of the
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actual market conditions under which Being Sexy is sold i.e., with the recognition
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that the product is generally sold in a salon environment where products are grouped by
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product line.12 His results are striking. He found no measurable confusion caused by
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12 Conair does not concede that Mr. Johnsons Squirt survey method is necessarily appropriate here.
But to closely study the "noise" generated by Mr. Johnsons study Conair and Professor Stewart
Continued on the next page

the alleged trade dress.
Instead, any purported "confusion" found by Mr. Johnson is the result of the
noise generated by his own survey design,13 which he then misinterpreted as source
confusion. Professor Stewart proved this by presenting survey participants the
products, in a non-leading fashion, and in a manner reflecting the actual marketplace
conditions. This revealed that the "level of confusion obtained for the 'Being Sexy'
product was no greater than that obtained for the [control] Bed Head products."
(Stewart Decl. 11).
As Prof. Stewart explained, the function of a control is to determine and then
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subtract out the "ambient rate of confusion" and what remains is any actual confusion
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(Stewart Decl. 10: "The level of confusion obtained for the control product(s),
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commonly called the ambient rate of confusion, is subtracted from the level of
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confusion obtained for the target product to produce an estimate of the level of actual
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confusion.").
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Professor Stewarts study showed that the ambient "confusion" or noise
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generated by the control products used the non-infringing Bedhead products was
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essentially the same as the confusion generated by the allegedly infringing Being Sexy
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products. Once the ambient level of confusion is eliminated, there is no source
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confusion. Thus, Professor Stewarts "results make clear that there is little or no actual
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confusion in the market as to the source of the Rusk 'Being Sexy' product." (Stewart
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Decl. 11).
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Continued from the previous page
closely tracked the method used by Johnson but made several corrections to more accurately replicate
market conditions. The results confirmed that Mr. Johnson's study generated a great deal of noise due
to an improper design, which he then mistakenly deemed to actionable source confusion. (Stewart
Decl. 8-11)
13 Mr. Johnson has testified that the Squirt survey methodology generates a lot of "noise" and many
courts have refused to use Squirt surveys for that reason. (Hardin Decl. 2, P. Johnson depo. at 133:20137:19)
III.
MR. JOHNSONS SURVEY AND HIS CONCLUSIONS ARE SO
THOROGHLY DEFECTIVE THAT THEY SHOULD BE EXCLUDED AS
CONTRARY TO DAUBERT AND IRRELEVANT
A.
A "trial judge must ensure that any and all [expert] testimony or evidence
admitted is not only relevant, but reliable." Daubert v. Merrel Dow Pharmaceuticals,
Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 2793 (1993). The Supreme Court later held
that Dauberts general holding applies not only to testimony based on "scientific"
knowledge, but also to testimony based on "technical" and "other specialized"
Legal Standard
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knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 139, 119 S.Ct. 1167,
11
1168 (1999); see also Fed R. Evid 702. A method of analysis which may be typical
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within a field, but that is not typically used to make statements regarding the case and
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issue will be rejected when it is not found to be scientifically valid; a court may
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conclude that there is simply too great and analytical gap between the data and the
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opinion proffered. General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 519
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(1997).
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The Federal Rules of Evidence require a judge to undertake a preliminary
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assessment of whether the reasoning or methodology underlying the testimony is
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scientifically valid and of whether that reasoning or methodology properly can be
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applied to the facts in issue. Daubert, 509 U.S. at 582. The expert report of Mr.
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Johnson fails to meet the Supreme Court's standards for reliability and relevance and
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should be excluded.
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An analysis of a proffered expert opinion begins with Rule 702 of the Federal
24
Rules of Evidence, which provides: if scientific, technical or other specialized
25
knowledge will assist the trier of fact to understand the evidence or to determine a fact
26
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
27
education may testify thereto in the form of an opinion or otherwise.
28
To decide admissibility under rule 702, the trial court is called upon to perform a
- 10 MEMORANDUM IN SUPPORT OF CONAIRS MOTION TO EXCLUDE REPORT AND TESTIMONY OF SURVEY
"gatekeeping function and ensure that proffered expert testimony is both relevant and
reliable." Dancy v. Hyster, Co., 127 F.3d 649, 652 (8th Cir. 1997), cert denied, 523 U.S.
1004, 118 S.Ct. 1186 (1998). The trial judge is the gatekeeper of expert testimony.
Before the contemplated expert testimony can be submitted the trial court initially must
determine if the expert is proposing to testify to scientific or other specialized
knowledge that "will assist the trier of fact to understand or determine a fact in issue."
Id. at 591.
8
9
"It is the proponent of the expert who has the burden of proving admissibility."
Lust By And Through Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th
10
Cir. 1996); see also Butler v. Home Depot, Inc., 984 F.Supp. 1257, 1260 (N.D. Cal.
11
1997) ("ultimately, the proponent of the expert testimony bears the burden of
12
establishing the testimonies admissibility by a preponderance of the evidence.") Two
13
core criteria that proffered expert testimony must meet are reliability and helpfulness to
14
the jury. Maryland Casualty Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 784-785 (4th Cir.
15
1998), cert denied, 525 U.S. 827, 119 S.Ct. 74 (1998).
16
Surveys are admissible if they are probative on the issue of consumer confusion.
17
To be probative, a survey must "have been fairly prepared and its results directed to the
18
relevant issues." Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 741 (2d Cir. 1994).
19
Generally, flaws in survey methodology affect the probative value of the survey, but not
20
its admissibility. Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 259 (2d
21
Cir. 1987). However, a survey is inadmissible if it is so flawed that it lacks all
22
relevance. McNeilab, Inc. v. American Home Products Corp., 848 F.2d 34, 38 (2d Cir.
23
1988); M2 Software, Inc. v. Madacy Entertainment, 421 F.3d 1073, 1087 (9th Cir. 2005)
24
(Treatment of surveys is a two-step process. First, is the survey admissible? That is, is
25
there a proper foundation for admissibility, and is it relevant and conducted according
26
to accepted principles? This threshold question may be determined by the judge.)
27
(emphasis added); Quiksilver, Inc. v. Kymsta Corp., 247 F.R.D. 579, 585-86 (C.D.Cal.
28
2007) (excluding trademark consumer survey that was not relevant).

For the reasons discussed below, Mr. Johnson's report and survey are so flawed
1
2
that they lack all relevance and should be excluded.
B.
Entire Survey.
As a threshold matter, Johnson has made several blatantly false assumptions
5
6
Mr. Johnson Made Several Flagrant Factual Errors That Infect His
regarding the origin and relevant market for the Being Sexy Product.
First, Johnson incorrectly assumed that Being Sexy was a new product that had
never been sold anywhere (Hardin Decl. 2, P. Johnson depo. at 34:12-36:17), when in
fact Being Sexy has been sold since 2008 and is part of a larger Being line of products
10
that has been sold since 2001. (Simmons Decl. 7-8; Russo Decl. 7-9).
Second, Johnson compounded his error by then incorrectly assuming that the
11
12
Being Sexy product line is (or in his mind will be) sold primarily in mass market
13
retailers such as CVS, Walmart, and Target, when in fact the Being Sexy line is sold
14
primarily in salons and related professional hair care outlets. (Hardin Decl. 2, P.
15
Johnson depo. at 58:3-22, 82:6-15). Johnson's survey is based on the notion of diverted
16
sales of Being Sexy products to mass-market retailers such as CVS, Walmart, and
17
Target, but he submits no evidence of any such diverted sales.14

This is no accident. Conair directs all of its marketing and sales of the Being
18
19
Sexy products to salons and other professional hair care outlets, and has an anti-
20
diversion policy precluding sales through mass-market retailers. (Russo Decl. 14-15).
21
Rather than appreciate this critical fact which shows Johnson focused on the wrong
22
market Johnson misguidedly uses this fact to bolster his already incorrect assumption
23
that Being Sexy is a new and unreleased product. In other words, Johnson erroneously
24
concluded that because he and SHC could not find any Being Sexy products in mass
25
market retailers, it must be a new product.
26
27
28
Neither Johnson nor Plaintiffs counsel (paralegal John Metzger) were able to find any Being Sexy
products at any of the mass-market retail stores they canvassed and photographed. (See photographs
attached to declaration of John Metzger).
14

As discussed below, these two flagrant factual errors cause many fatal defects in
1
2
Johnson's survey, including basing it on incorrect survey universe and failing to
replicate market conditions.
C.
Mr. Johnson Used A Grossly Incorrect Survey Universe By Ignoring
Salons And Focusing On A Fictitious Market For Being Sexy Products
At Mass Market Retailers.

A proper survey regarding likelihood of confusion must be based on the universe
7
8
of prospective purchasers of the product with the junior mark/dress i.e. Conairs
Being Sexy product. See e.g., Hansen Beverage Co. v. Cytosport, 2009 WL 5104260,
10
*13;15 see generally 5 J. McCarthy, Trademarks and Unfair Competition 32:159 (4th
11
ed. 2012) ("McCarthy") ("Selection of the proper universe is a crucial step, for even if
12
the proper questions are asked in the proper manner, if the wrong persons are asked, the
13
results are likely to be irrelevant."). Although Johnson acknowledged it is very
14
important to survey the proper universe, his admissions establish beyond question he
15
failed to do so here.
16
Here, because Johnson misunderstands the origin and market for the Being Sexy
17
product, he improperly weighted his survey toward potential purchasers at mass market
18
retailers where there is no known market for Being Sexy products and nearly
19
ignored the salon environment in which Being Sexy products are actually sold.
As survey authority Shari Diamond states, in a carefully executed survey, the
20
21
initial questions screen potential respondents to determine if they are within the target
22
universe of the survey. Diamond, Shari S., "Reference Guide on Survey Research,"
23
Reference Manual on Scientific Evidence, 3rd Ed., Federal Judicial Center (2011) pp.
24
359-423. Mr. Johnson states that the survey respondents were "440 adult females who
25
are prospective purchasers of salon/professional hair products from a store or salon."
26
(Johnson Report, p. 8). Thus, in Johnsons survey, persons were qualified regardless of
27
28
15
See also Hardin Decl., 2, P. Johnson depo. at 53:3-9.

whether they were likely to purchase salon or professional hair care products from a
retail store or from a salon.

However, the main distribution channel for the Being Sexy product is through
3
4
salons.16 Moreover, given that Mr. Johnsons survey was conducted at eight shopping
mall-based research facilities,17 it is very likely that the Johnson survey includes many
respondents who did not intend to purchase hair care products at a salon. Thus, by
indiscriminately lumping purchasers from mass merchandise stores with salon
purchasers when in reality mass merchandisers comprise at best a minute share of the
market for Being Sexy products Johnson has grossly over weighted mass merchandise
10
stores and grossly underweighted salons. (Dhar Report 16, p. 7).

As Professor Dhar states, "[t]he underrepresentation of buyers at a salon is a
11
12
serious flaw " because the salon marketplace is very different than a mass
13
merchandiser or drugstore. (Dhar Report 17, p. 7). First, if consumers are unlikely
14
to encounter Being Sexy products at mass merchandisers, a survey focusing on mass
15
merchandisers will likely overstate any alleged confusion. (Id.)

Second, in salons purchasers rely on the recommendations from professional
16
17
stylists. Given that the RUSK brand is very well-known by professional hair stylists
18
which have been the target of RUSKs advertising and education for over 30 years
19
they are not likely to think any RUSK-branded product originates from Sexy Hair,
20
regardless of the purported similarities in trade dress. (Dhar Report 17, p. 7).
21
Third, purchasers of salon brands from salons are likely to be more
22
knowledgeable about salon brands and less likely to guess a connection, which is
23
particularly important given the leading survey designed by Mr. Johnson. (Dhar Report
24
25
26
27
28
16
Both Conair and SHC have anti-diversion policies, and neither SHC nor Johnson have submitted
any evidence that the Being Sexy line, or any of the other Being products, were ever diverted to any
mass merchandise retail stores. However, even if such diversion is assumed, the amounts would be
minimal. Indeed, SHCs CEO opined in deposition "[t]hat Im doing a pretty good job controlling
diversion because they [mass merchandisers] don't have a lot of Sexy Hair [products]." (Hardin Decl.
3, K. Pitsch at 94:16-95:8).
17 Johnson Report, p. 8.
17, p. 8).
D.
Mr. Johnson Failed To Approximate Market Conditions In Many

Respects.
Although Johnson admitted that a valid survey should replicate market
4
5
conditions for the junior trademark or trade dress, his own admissions establish that he
was wildly off-the-mark here.18 See generally McCarthy at 32:163 ("The closer the
survey methods mirror the situation in which the ordinary person would encounter the
trademark, the greater the evidentiary weight of the survey results.").
First, as discussed above, by incorrectly assuming the market for Being Sexy
10
products is mass market retailers, Johnson failed to replicate key conditions within the
11
salon environment that tend to prevent or minimize consumer confusion.19 In the salon
12
environment: (1) RUSK products are very well-known by salon professionals; (2) sales
13
are driven by recommendations by hairstylists and salon employees; and (3) RUSK
14
products (and Sexy Hair products) are grouped together by manufacturer and product
15
line i.e., the Being Sexy line is grouped with the larger Being line, which in turn
16
is grouped with other products within the RUSK product family. (Russo Decl. 14-24;
17
Simmons Decl. 15-16). Unlike at a drug store or retail store where consumers walk
18
the aisles unassisted, consumers in a salon are likely to speak with, and rely on, salon
19
professionals who are familiar with well-known salon brands such as Being Sexy. (Dhar
20
Report 17, p. 7). And salon consumers will usually encounter a group of RUSK
21
Being products together (for example, Being Undressed, Being Smooth, Being Gutsy,
22
or Being Sexy).20
23
24
18
25
26
27
28
Johnson Depo. 82:3-5.

Johnson admits didnt visit any salons and never even considered doing so. (Johnson Depo. 32:1933:16).
20 Even in mass merchandisers, products are usually grouped by product line and manufacturer (e.g.,
all Paul Mitchell products are grouped together, all Redken products are grouped together, etc.)
Indeed, SHCs CEO estimated that 80% of the time the mass merchandise retail stores group hair care
products including those of SHC and Rusk by manufacturer. (Hardin Decl. 3, K. Pitsch depo. at
82:12-84:19).
19

Second, Johnson did not present survey respondents with the goods as they would
be encountered in the marketplace. (Dhar Report 22-23, pp. 10-11). Whether in a
salon or mass retailer, consumers for Sexy Hair and Being Sexy products would
ordinarily encounter most or all of the six Sexy Hair product lines ("BigSexyHair,"
"CurlySexyHair,"
"StraightSexyHair") and the Being Sexy product grouped with other Being product
lines. By contrast, Johnsons survey unrealistically presented respondents with a single
Sexy Hair product line21 (which he cherry picked to try to match the colors of the Being
Sexy product) in an "advertisement" (which was also cherry picked) and then a Being
10
"HealthySexyHair,"
"ShortSexyHair,"
"SilkySexyHair,"
and
Sexy product in a lineup along with other products in relative isolation.

Third, Johnsons exposure of participants to only a single line of the Sexy Hair
11
12
products was also leading because "it is likely to make survey respondents rely on
13
looking for a color match with the Rusk Being Sexy products that were shown." (Dhar
14
Report 23, p. 11) (emphasis added). Johnson further heightened the color matching
15
dynamic by cherry picking" only two brightly colored lines of Sexy Hair products
16
StraightSexyHair (gray and pink) and BigSexyHair (bright red and black) that are the
17
closest color match to the Being Sexy product (pink and black).
Sexy Hair does not own a monopoly to use certain colors, let alone all of the
18
19
various colors in the six Sexy Hair product lines (i.e. gray, pink, red, black, green, blue,
20
purple, silver, yellow). At best, assuming Sexy Hair could establish protectable trade
21
dress, it would own rights only in the very particular combination of colors, text and
22
other attributes that Sexy Hair specifically claims as its unique trade dress. Given that
23
SHC (and Johnson) claim that the Being Sexy product infringes on the trade dress of all
24
six Sexy Hair lines, Johnson logically could have shown survey participants the four
25
other Sexy Hair lines whose colors are very different HealthySexyHair (green),
26
CurleySexyHair (blue), SilkySexyHair (purple), or ShortSexyHair (silver). He should
27
28
21
Either the BigSexyHair or StraightSexyHair product line.

1
2
have done this to reduce the color matching dynamic at play in his survey.
Fourth, Johnson also "cherry picked" the SHC "advertisements" or "stimuli" that
presented to survey participants in a manner that was unfounded and leading. It was
unfounded because Johnson admits he doesn't even know if the stimuli he used were
actual advertisements. (Hardin Decl. 2, P. Johnson depo. at 64:1-67:4). They were
given to him by SHC among 15 pages of images selected by SHC. (Id.) He has no
information regarding Sexy Hairs advertising budget at SHC, practices, or whether
these images are at all representative of SHCs advertising for the Sexy Hair lines. (Id.)
Johnson also cherry picked the "advertisements" to include background colors
10
that are very similar to those in the Being Sexy products that survey participants were
11
shown. (Dhar Report 23-24, p. 11).
12
Fifth, "[t]he leading nature of Johnson survey methodology was compounded by
13
not explicitly providing a 'don't know' or 'no opinion' response option to the survey
14
questions that were used to assess confusion." (Dhar Report 25, p. 12). As Diamond
15
notes, the use of "don't know" or "no opinion" options signal to the respondents that it is
16
appropriate not to have an opinion and reduces the demand for answer and thereby
17
reduces guessing. Diamond, Shari S., "Reference Guide on Survey Research,"
18
Reference Manual on Scientific Evidence, 3rd Ed., Federal Judicial Center (2011) pp.
19
359-423. By not including this option, Johnson likely increased the number of
20
participants who were guessing in response to the confusion questions. (Id.)
21
Sixth, the data from Johnson's survey confirms that he designed a very leading
22
survey. Indeed, in response to the source and relationship confusion questions (Q5a and
23
Q6a) in the control cell in which there is no confusion by design 30% of the
24
respondents indicated that they were confused as to source. (Dhar Report 26, p. 13). In
25
other words, Johnsons leading survey caused nearly a third of the control cell
26
participants to claim confusion even when there was no basis confusion other than the
27
survey design.
28
E.
Johnson Failed To Properly Control For The Leading Nature Of His

Survey.
The function of a control is to determine and then subtract out the "ambient rate
of confusion" and what remains is any actual confusion. (Stewart Decl. 10: "The level
of confusion obtained for the control product(s), commonly called the ambient rate of
confusion, is subtracted from the level of confusion obtained for the target product to
produce an estimate of the level of actual confusion."). As explained by Professor
Dhar:
9
10
11
12
13
14
15
16
17
Even if a survey has been properly designed and the questions asked in a
non-leading manner, consumers response to survey questions may be the
result of information from sources other than the trade dress of the Sexy
Hair product as well as due to guessing. In order to control for such factors
that are unrelated to the allegedly confusing word Mark and trade dress,
the survey expert should use inappropriately design control group, which
will reveal the degree to which responses to the test self-contained 'noise.'
When a proper control product is used, any difference obtained in
responses in the two cells can properly be attributed to the allegedly
confusing name and trade dress. A properly selected control product
shares as many characteristics with the test product minus the allegedly
deceptive trademark and trade dress. . . .
(Dhar Report 29-30, p. 14) (emphasis added).
Here, Johnson did not control for guessing based on color matching because the
18
control product Johnson selected "was a completely different color from the test
19
product." (Dhar Report 31, p. 13). Sexy Hair has no right under trademark law to
20
claim ownership in colors per se. Johnson should have used a control product that had
21
colors similar to the Being Sexy products (e.g. pink and black) but which lacked the
22
specific trade dress attributes claimed by Sexy Hair in this case (e.g., vertical lettering
23
running down the length of the bottle, etc.). Instead, Johnson used a control product (in
24
the control cell) that was mostly white and colorless, while in the test cell the
25
participants saw a Being Sexy product that is pink and black. "The lack of a proper
26
control group in the Johnson survey seriously limits the ability to determine whether the
27
responses are due to the trade dress, or guessing or other irrelevant factors such as
28
similar package colors of Sexy Hair and the Rusk Being Sexy products shown in the
survey." (Dhar Report 30, p. 14).
F.
Johnson Improperly Coded His Survey Results To Artificially Inflate

The Confusion Percentages.
The verbatim consumer responses Johnson received regarding consumers he
4
5
counted as "confused" by source reveal that Johnson improperly lumped in those who
were merely "confused" with those who were actually confused by source based on the
specific trade dress claimed Sexy Hair in this action.

As noted above, even assuming Sexy Hair had protectable trade dress, trademark
8
9
law does not give it the right to claim a monopoly on all the colors in its products, to the
10
word sexy in isolation (it is generic), or to the shape its bottle (it is functional), among
11
other things. Instead, Sexy Hair can only claim, at best, to own rights only in the
12
particular combination of colors, text and other attributes that Sexy Hair specifically
13
claims as its unique trade dress.

In his report, Johnson claims Sexy Hair has "distinctive trade dress" that includes
14
15
the following four elements: (1) "the product line mark running vertically down almost
16
the entire length of the package"; (2) "with 'Sexy' being presented in lowercase letters";
17
(3) "with 'Sexy' in a contrasting color to the other elements, so that it presents a unique
18
and unitary commercial impression" and (4) "with the house mark being presented in
19
much smaller type in a horizontal layout above the product line mark." (Johnson Report,
20
4).
21
Thus, consumers who state that they were "confused" based on unprotectable
22
product attributes such as similar colors or bottle shape should not be counted as
23
confused. Yet, that is exactly what Johnson has done here. (Dhar Report 32-34). If
24
such consumers are eliminated, the purported "confusion" percentages claimed by
25
Johnson are reduced significantly from 35% to 22% for the group shown the Big Sexy
26
Hair" advertisement" and from 44% to 31% for the group shown the Straight Sexy Hair
27
"advertisement." (Id.)
28
IV.
JOHNSON HAS BEEN CRITICIZED BY VARIOUS OTHER COURTS
FOR SIMILAR PROBLEMS WITH HIS SURVEYS
Many other courts have criticized Mr. Johnson's survey designs or interpretations
for being leading or scientifically unreliable for some of the same reasons noted here.
First, at least one court has criticized Johnson for "cherry picking" advertisements
in a manner similar to this case. See Brunckhorst Co v. Heilman, 875 F.Supp. 966, 981-
82 (E.D.N.Y 1994). In Brunckhorst, survey participants were given a leading
advertisement in Johnsons survey. Specifically, they were shown an advertisement
with a glass of Boars Head beer and with the name Weinhards also displayed in
10
the ad. Unsurprisingly, when asked in the survey, the participants identified the beer in
11
the ad as a Weinhard product and they associated the producer of the beer as a producer
12
of other beer products (the Boars Head words would only have been infringing if
13
consumers associated them with specific food products sold by another business using
14
the mark Boars Head). Johnson used another advertisement as well which the court
15
found to be similarly leading since it only displayed the words Boars Head with a
16
picture of beer.
17
Second, many courts have criticized Johnson's surveys for failing to replicate
18
market conditions. See e.g., Big Ten Conference v. Big Ten Worldwide Concert and
19
Sport Club, 2000 US Dist. Lexis 22328, *20-21 (E.D. Mich. 2000) (the court noted
20
obvious issues related to the evidentiary value of [Johnsons] survey, including sample
21
size, selection of survey site and participants, and bias); Coherent, Inc. v. Coherent
22
Technologies, 736 F.Supp. 1055, 1066-67 (D. Colo. 1999) (the court found that
23
Johnsons survey does not establish actual confusion because it did not accurately
24
simulate conditions in the marketplace); Franklin Resources, Inc. v. Franklin Credit
25
Management Corp., 1997 WL 543086, *3-7 (S.D.N.Y. 1997) (the court found that:
26
Johnsons survey was exceptionally broad; [n]o effort was made to screen the
27
[participants] more specifically to determine whether they possessed characteristics
28
relevant to the mental associations at issue; the surveys universe was overbroad;
there were significant flaws in the surveys universe; and the survey did not
approximate the actual conditions under which a prospective customer would
purchasefrom plaintiff.).
Also on point here are two opinions issued in the Juicy Couture, Inc. v. LOreal
USA, 04CIV7203(DLC) case. In one opinion the court found Johnsons survey was
fundamentally flawed because it did not replicate market conditions, its pool of
respondents was skewed towards [plaintiffs] customer base, and it asked for
unnecessary information. Juicy Couture, Inc. v. LOreal USA, 2006 WL 2591478, *4
(S.D.N.Y. 2006). Furthermore, defendants competing survey showed virtually no
10
evidence of confusion. Id. In the second opinion the court found Johnsons survey
11
had no value on the issue of actual confusion because of [its] fundamental flaws
12
Juicy Couture, Inc. v. LOreal USA, 2006 WL 1012939, *25-26 (S.D.N.Y. 2006).
13
Specifically, the Johnson survey: did not replicatemarketplace conditions; utterly
14
failed to conduct a survey that measures any reliable issue; did nothing to replicate
15
the point-of-sale experience; had flaws with the universe of respondents that were
16
selected; and did not provide any meaningful information about the likelihood of
17
confusion. Id.
18
Third, other courts have criticized Johnson's surveys from being improperly
19
leading. See e.g., Coors v. Anheuser Busch, 802 F.Supp. 965, 972 (S.D.N.Y 1992)
20
(finding a survey question produced unreliable results because it was leading); 24
21
Hour Fitness USA, Inc. v. 24/7 Tribeca Fitness, LLC, 447 F.Supp. 2d 266, 281
22
(S.D.N.Y 2006) (noting survey questions were leading and stating this survey did not
23
control for the power of suggestion.).
24
Indeed, one court specifically criticized Johnson for designing a survey that it
25
referred to as merely a name recognition test. Franklin Resources, Inc. v. Franklin
26
Credit Management Corp., 988 F.Supp.322, 335 (S.D.N.Y. 1997) ([This] survey
27
proves something, but not very much. Principally, it proves that most of the respondents
28
could read the name Franklin in the booklet, and remember it long enough to
recognize the name when shown of the three letters immediately thereafter[s]urveys
which do nothing more than demonstrate the respondents ability to read are not
probative on the issue of likelihood of consumer confusion.).

Fourth, some of those same courts criticized Johnson for improperly counting or
4
5
coding survey responses in a manner that obfuscated or increased the confusion
percentage. Coors, 802 F.Supp. at 972 ([N]ot only did [the survey] conflate the
percentage of respondents saying that Natural Light is not diluted with the percentage
saying that Natural Light is not watered down, but, as discussed above, [the survey] also
conflated the percentage of respondents saying that Coors Light is diluted with the
10
percentage saying that Coors Light is watered downAccordingly, I find that the 9% of
11
the respondents saying that Natural Light is not diluted/watered down is not reliable
12
evidence of consumer confusion); 24 Hour Fitness USA, Inc., 447 F.Supp. 2d at
13
280-81 (criticizing coding in Johnson survey because other forms of coding would have
14
shown lower percentages of likelihood of confusion and acknowledging that Johnsons
15
biases could be reflected in the coding of the responses.).
16
V.
PROFESSOR STEWARTS SURVEY RESULTS WHICH ESTABLISH
17
ESSENTIALLY NO SOURCE CONFUSION CONFIRM THAT
18
JOHNSONS SURVEY WAS LEADING AND IMPROPER
19
As discussed above in section II.F, the survey done by Professor David Stewart
20
for Conair used the same basic survey method employed by Johnson (i.e. Squirt or
21
"mall intercept" survey) but with a more accurate replication of the actual market
22
conditions, i.e., it focused on a salon environment, and a better control.
23
Professor Stewart found no measurable confusion caused by the alleged trade dress.
24
Specifically, Professor Stewart's results showed that the "level of confusion
25
obtained for the 'being Sexy' product [test cell] was no greater than that obtained for the
26
[control cell] Bed Head products." (Stewart Decl. 11). In other words, the survey
27
method generated appreciable confusion levels the levels are essentially the same for
28
the non-infringing control products (Bedhead) as for the allegedly infringing test
products (Being Sexy).
As Professor Stewart states in the conclusion of this report:
This study indicates that the actual level of confusion of the Rusk 'being
Sexy' product with the sexy hair line of products and its source is
negligible. To the extent that any confusion exists, it is related to general
characteristics of the category, professional salon style hair care products.
These characteristics include the type of product, right colors, varied
shapes of bottles and/or cans, and naming conventions that include subbrand names for individual products. . . .
4
5
6
7
(Stewart Report, p. 21).
8
9
10
11
12
13
VI.
CONCLUSION
For the reasons set forth herein, Conair respectfully requests that the court issue

Dated: July 29, 2015
NEWPORT TRIAL GROUP

A Professional Corporation
Scott J. Ferrell
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By: /s/Scott J. Ferrell

Scott J. Ferrell
Attorneys for Defendant,
CONAIR CORPORATION
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1
2
CERTIFICATE OF SERVICE
I hereby certify that on May 16, 2012, I filed the foregoing MEMORANDUM
IN SUPPORT OF DEFENDANT CONAIR CORPORATIONS MOTION TO
EXLCUDE THE REPORT AND TESTIMONY OF SURVEY EXPERT PHILIP
JOHNSON with the Clerk of the Court using the CM/ECF system which will send
notification of such as noted below all counsel of record.
/s/ Scott J. Ferrell

Scott J. Ferrell
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Via CM/ECF
Alisa S Edelson
David S Olson
Clark & Trevithick
800 Wilshire Boulevard 12th Floor
Los Angeles, CA 90017
213-629-5700
Fax: 213-624-9441
Email: aedelson@clarktrev.com
Email: dolson@clarktrev.com
ATTORNEY TO BE NOTICED
Attorney for Plaintiff SEXY HAIR

CONCEPTS, LLC
Roberta Jacobs-Meadway
Jessica K Bae
Brendan Ruddy
Eckert Seamans Cherin and Mellott LLC
Two Liberty Place
50 South 16th Street 22nd Floor
Philadelphia, PA 19102
215-851-8400
Fax: 215-851-8383
Email: rjacobsmeadway@eckertseamans.com
Email: jbae@eckertseamans.com
Email: bruddy@eckertseamans.com
PRO HAC VICE
ATTORNEY TO BE NOTICED
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Case 2:12-cv-02218-CBM-PLA Document 89
Filed 06/25/12 Page 1 of 14 Page ID #:2435
CHAMBERS COPY
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SCOTT J. FERRELL (Bar No. 202091)

sferrell@trialnewport.com
JAMES B. HARDIN (Bar No. 205071)
TYLER J. WOODS (Bar No. 232464
twoods@trialnewport.com
STEVEN R. TELLES (Bar No. 246514)
stelles@trialnewport.com
NEWPORT TRIAL GROUP
895 Dove Street, Suite 425
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
Attorneys for Defendant
CONAIR CORPORATION
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WESTERN DIVISION
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SEXY HAIR CONCEPTS, LLC
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Plaintiff,
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vs.
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CONAIR CORPORATION,
Defendant
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CONAIR CORPORATION,
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Counterclaimant,
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vs.
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SEXY HAIR CONCEPTS, LLC,
Case No. 12cv2218-CBM (PLAx)

REPLY IN SUPPORT OF
DEFENDANT CONAIR
CORPORATIONS MOTION TO
EXLCUDE THE REPORT AND
TESTIMONY OF SURVEY EXPERT
PHILIP JOHNSON; MEMORANDUM
OF POINTS AND AUTHORITIES
Date:
Time:
Judge:
Courtroom:
July 9, 2012
11:00 a.m.
Hon. Consuelo B. Marshall
10A
Complaint Filed: March 15, 2012
Counterdefendant
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REPLY IN SUPPORT OF DEFENDANT CONAIR CORPORATIONS MOTION TO EXCLUDE REPORT AND
TESTIMONY OF PHILIP JOHNSON
TABLE OF CONTENTS
I.
Pages
INTRODUCTION ..................................................................................................... 1
II.
JOHNSONS KEY DEPOSITION TESTIMONY ................................................... 2
III.
SHC HAS NOT JUSTIFIED JOHNSONS COMPLETE

DISREGARD OF SALONS IN PREPARING HIS SURVEY................................. 5
IV.
SHCS GENERAL DEFENSE OF THE TWO ROOM TEST

METHOD IGNORES THE MANY WAYS IN WHICH
JOHNSON MISAPPLIED IT IN THIS CASE ......................................................... 6
V.
JOHNSON HAS NOT JUSTIFIED HIS FAILURE TO

CONTROL FOR GUESSING BASED ON THE COLOR
MATCHING DYNAMIC CREATED BY HIS SURVEY ....................................... 8
VI.
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JOHNSON HAS NOT EXPLAINED OR JUSTIFIED HIS MANY

CODING ERRORS WHICH DROVE UP "CONFUSION"
NUMBERS IN HIS SURVEY ................................................................................ 10
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VII. CONCLUSION ........................................................................................................ 10
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TABLE OF AUTHORITIES
Pages
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FEDERAL CASES
Abarca v. Franklin County Water Dist., 761 F.Supp.2d 1007 (E.D.Cal. 2011) ......... 5
Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010) ................................................................ 5
Skechers U.S.A. v. Vans, Inc., 2007 WL 4181677 (C.D. Cal. 2007) ............................. 9
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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
INTRODUCTION
In an effort to salvage Philip Johnsons (Johnson or Mr. Johnson) patently
leading and defective survey, Plaintiff Sexy Hair Concepts, LLC (SHC) offers a wide
array of factual and legal arguments that are misleading or unpersuasive and simply
ignores the key deposition testimony of Mr. Johnson that establishes beyond question
his work cannot pass muster under Daubert.

As an initial matter, a review of Mr. Johnson's deposition testimony establishes
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beyond question that he was ignorant of or misunderstood many of the key factual
issues underlying his survey. As set forth in section II, Mr. Johnson:
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(1) didn't know Rusk has sold an overarching "Being" line of products;
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(2) didn't know Rusk has sold a "Being Sexy" product (hairspray) since
2008 and that in 2012 Rusk merely expanded the "Being Sexy"
product line by adding shampoo, conditioner, Moose, gel, cream, and
oil and updating the trade dress;
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(3) was unaware of the fact that both Conair Corporation (Conair) and
SHC market and distribute their products primarily to hair salons and
that they have strict anti-diversion policies precluding sales of their
products in mass-market retail stores;
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(4) did not visit a single salon as part of his work in this case;
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(5) briefly visited only a handful of mass-market retailers (approximately

six) in the Chicago-area (e.g., CVS, Walgreens, and Target) without
taking any notes or photographs;
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(6) "has no idea" how the Being, Being Sexy, and Sexy Hair products are
displayed in salons;
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(7) has only cursory information regarding the retail sales environment for
these products and has no idea how often these products are grouped or
displayed together by manufacturer as opposed to by product type;
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(8) admitted the salon purchasing environment is different than the mass
merchandise retail environment because, among other things, salon
professionals make product recommendations; and
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(9) the "advertisements" used by Johnson were hand-picked by counsel

and Johnson has no basis for assuming these are actual advertisements
or that they are representative of SHCs actual advertisements.
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Thus, on this ground alone, Johnson's survey should be excluded.

Moreover, SHC has not rebutted Conairs many bases for asserting that Johnson
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failed to survey the relevant universe of prospective purchasers, failed to approximate
market conditions, and failed to use a proper control. Among other things, as discussed
below: (1) SHC has not justified Johnsons complete disregard of salons in preparing
his survey; (2) SHCs general defense of the two room test method ignores the many
ways in which Johnson misapplied it in this case; (3) Johnson has not justified his
failure to control for guessing based on the color matching dynamic created by his
survey; and (4) Johnson has not explained or justified his many coding errors which
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drove up "confusion" numbers in his survey.
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II.
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JOHNSONS KEY DEPOSITION TESTIMONY

As stated above, a review of Mr. Johnson's deposition testimony establishes
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beyond question that he was ignorant of or misunderstood many of the key factual
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issues underlying his survey. It is undisputed that Rusk has sold an overarching "Being"
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line of products, which has included over time Being Smooth, Being Warped, Being
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Wild, Being Undressed, Being Rubber, Being Primitive, and Being Sexy, since 2001;
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and Rusk has sold a "Being Sexy" product (hairspray) since 2008. (Simmons Decl.
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7-8; Russo Decl. 8-9).1 In 2012, Rusk merely expanded the "Being Sexy" product
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line in 2012 by adding shampoo, conditioner, mousse, gel, cream, and oil, and updated
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the trade dress it had been using since 2008.

Despite that, Johnson admitted in deposition he was ignorant of all of these facts.
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First, he was unaware of the overarching Being line and unaware that the Being Sexy
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hair spray product has been sold since 2008. (Johnson Depo. 34:12-36:17; 189:14-
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190:16, Declaration of James Hardin[Hardin Decl.], Exhibit A) (Excerpt: Q. Are
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you aware that whether or not Rusk any Rusk Being lines of products have been
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sold in any retail stores since 2008? A. I'm not I don't know. Q. Do you have any
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All declarations referenced herein, with the exception of the Declaration of James Hardin, were filed
with Conairs opposition to SHCs preliminary injunction motion.
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idea of which salons, if any, sell Rusk Being lines of products? A. I'm unaware of
any.) (emphasis added).2 Johnson incorrectly believed the "Being Sexy" name itself
was new to the market (Johnson Depo. 101:2-102:3); (See also Johnson Depo. 194:3-9).
Second, Johnson was also ignorant of Conairs and SHCs non-diversion policies, he
never visited any salons, and he based his survey entire on brief visits to a handful of
retail stores in the Chicago area. Both Conair and SHC market and distribute their
products primarily to hair salons and that they have strict anti-diversion policies
precluding sales of their products in mass-market retail stores. (Russo Decl. 14-16;
Simmons Decl. 15; Pitsch Depo. 95:1-8; 148:16-149:4; Hardin Decl. Exhibits B,
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C, and D). Yet Johnson admitted he was unaware that both SHC and Rusk had
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non-diversion policies that they regularly enforce. (Johnson Depo. 173:8-24) (Excerpt:
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Q. Are you aware that Sexy Hair Concepts has a policy of terminating any
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distributorships of which it learns are diverting its products to retail? A. I don't believe
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I do [sic.]; Q. Are you aware that Rusk has a non-diversion policy as well? AI don't
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know.) (emphasis added). Johnson admitted he completely ignored hair salons in
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preparing his survey because "there's no reason for me to visit salons". (Johnson Depo.
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32:19-33:21) (Excerpt: Q. Did you visit any salons? A. I did not Q. Why didn't you
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visit salons? A. There's no reason for me to visit salons.) (emphasis added). Moreover,
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Johnson admitted his entire survey is founded on his brief visits to "maybe [a] half-
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dozen" retail stores in the Chicago-area. (Johnson Depo 24:5-25:20).

Third, Johnson testified he does not know how Being Sexy or Sexy Hair products
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are displayed when sold. It is undisputed that in salons and retail stores the products of
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Rusk and SHC are generally displayed separately within their easily distinguishable
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groups. (SHCs motion for preliminary injunction, Metzger Decl. 11-12, Ex. M-N;
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Simmons Decl. 16; Russo Decl. 17-18). However, Johnson admitted did no
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research and has no knowledge regarding how these products are presented or sold in
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Accordingly, as of his deposition on April 18, 2012 Johnson had never seen the earlier Being product
trade dress. (Johnson Depo. 192:23-25).
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salons. (Johnson Depo. 45:25-46:7; see also 59:17-60:4). Moreover, he also does not
know (1) what percentage of the Rusk Being or Being Sexy product sales occur in the
retail environment upon which he bases his survey. (Johnson Depo. 46:8-11) (Excerpt:
"Q. What percentage of Rusk Being or Being Sexy line of product sales are from
diversion to retail stores? A. I don't know."); or (2) how often the Being Sexy or Sexy
Hair products are displayed together by manufacturer versus how often products are
grouped by product type in retail store(s).

Fourth, Mr. Johnson admitted the obvious point that the salon purchasing
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environment is different than that of mass merchandise retailers (e.g. in terms of the
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amount of product shown, the number of brands shown, and the way prices are
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displayed). (Johnson Depo. 169:6-170:7).3 Johnson even agreed with the key point
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(espoused by his own client4 and Professor Dhar) that in salons in contrast to mass
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merchandise storages sales are driven by recommendations from hairstylists. (Johnson
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Depo. 172:5-20) (Excerpt: Q. And the environment of purchasing in a salon, do you
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agree that salon professionals often make recommendations regarding what products
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to purchase or consider? A. That's my belief. Q. That's different than the retail
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environment at CVS and Walgreens, etc, correct? A. I would consider it so.)
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(emphasis added).
Fifth, the advertisements Johnson used were handpicked by counsel and
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Johnson has no basis for assuming such documents are actual advertisements or
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representative of SHCs actual advertisements. He admitted: (1) he simply received 15
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pages of images from counsel; (2) he doesnt know if these are actual advertisements;
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and (3) he has no basis for knowing of these images are representative of any
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advertisements Sexy Hair ever actually ran. (Johnson Depo. 65:4-67:4).
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Johnson apparently defined his goal in designing the survey as recreating a reasonable environment
or display of the way people might see something at retail i.e., based on diverted sales to mass
merchandise retail stores. (Johnson Dep. 53:10-20).
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SHCs own CEO asserts on the SHC website that he plans to move the company away from
celebrity-oriented consumer advertising to focus instead on stylists, whose recommendations drive
professional hair care. (Hardin Decl., Ex. E) (emphasis added).
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III.
SHC HAS NOT JUSTIFIED JOHNSONS COMPLETE DISREGARD OF

SALONS IN PREPARING HIS SURVEY
Johnson admits he did visit any salon and the he "has no idea" how the Being,
Being Sexy, and Sexy Hair products are displayed in salons (sections II above). Yet,
SHC makes several arguments to try to prop up his near-exclusive focus on massmarket retailers as the universe for his survey, all of which lack merit.
First, SHCs argument that Dr. Dhar improperly asserted without evidence that
the salon purchasing environment is different than the mass market retail environment is
undercut by the statements of SHCs CEO and Mr. Johnson himself. They both agree
that the salon environment is different because, among other things, sales in salons are
driven by recommendations from stylists and salon personnel. (Hardin Decl., Ex. E;
Johnson Depo. 172:5-20).
Second, SHC argues that Dhars critique is unfounded because he has not
considered any market research data on consumers of salon brand hair products. As an
initial matter, Mr. Johnson himself admitted he did not consider any market research
data on consumers of the products at-issue in this case. (Johnson Depo. 176:8-178:7).
Moreover, given the undisputed facts that the relevant products are sold primarily in
salons, the salon environment is clearly different, and Mr. Johnson didnt even consider
salons as part of his research, the onus is plainly on Mr. Johnson not Dr. Dhar to
come forward with market research data to support his facially misguided approach.
Third, on a related note, SHCs after-the-fact effort to produce market research
data to bolster Mr. Johnson after Johnson disclaimed reliance on such data is
improper and unavailing. It is improper because it makes his opinions unreliable.
Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010) (discussing that a trial court has
broad discretion in finding that an expert opinion is unreliable and therefore
inadmissible); Abarca v. Franklin County Water Dist., 761 F.Supp.2d 1007, 1072
(discussing that changes to an experts methodology can make underlying opinions
unreliable/inadmissible) (E.D.Cal. 2011). It is unavailing because at best this belated
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evidence only indicates there is some, but not complete, overlap between those who
purchase at salons versus stores. Thus, there is no basis to conclude that Johnsons
misdirected focus can be cured by a single phrase in a single qualifying question asking
whether participants would purchase from a store or salon within the next six months
IV.
SHCS GENERAL DEFENSE OF THE TWO ROOM TEST METHOD
IGNORES THE MANY WAYS IN WHICH JOHNSON MISAPPLIED IT
IN THIS CASE
Conair does that dispute as a general matter that the two room test method is
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acceptable in many instances, but critiqued Mr. Johnson for misapplying that method in
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many ways here. Rather than address all of Conairs points head-on, SHC employs a
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straw man technique and addresses only some points in an indirect and ultimately
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unpersuasive manner.
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First, as noted, Conair does not contend that the two room test method is not
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generally accepted in certain contexts, only that Mr. Johnson grossly misapplied it here.
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Second, Mr. Johnson admitted that he received a total of 15 images from counsel
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but he doesnt know if these images, or the specific ones he selected from the 15
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images, were actual advertisements run by SHC for its Sexy Hair products. (Johnson
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Depo. 65:4-67:4). Although SHC now argues that they dont need to be actual
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advertisements, Mr. Johnson falsely stated that these were advertisements in his
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report.
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Third, because Johnson admitted he has no understanding of the amount,
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channels, or content of any actual advertisements run by SHC, he has no foundation for
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assuming that the images he chose (from the sample handpicked by counsel) are
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representative of actual SHC advertisements. (Johnson Depo. 65:4-67:4). Thus, SHCs
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bare assertion that Mr. Johnson used examples of advertisements commonly found in
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magazines in hair salons to which consumers may be exposed (Opposition 6:10-11) is
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doubly unfounded and speculative because: (1) Mr. Johnson did not go to any hair
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salons; and (2) he has no information regarding SHCs actual advertisements. Indeed,
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Case 2:12-cv-02218-CBM-PLA Document 89 Filed 06/25/12 Page 10 of 14 Page ID

#:2444
Mr. Johnson doesnt have a sufficient foundation to even deny cherry picking the
advertisements he used.
Fourth, SHCs assertion that Dr. Dhars critique was lacking because he cited no
market research regarding the significance of stylist recommendations on sales
(Opposition 7:17-18) is odd given that SHCs Chief Executive Officer has admitted
such recommendations are important, and Mr. Johnson agreed in his deposition, and yet
SHC did not even conduct proper market research. Thus, the onus is on Mr. Johnson
to provide support for his position but he has failed to do so.
And SHCs reference to the absence of any statements regarding the significance
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of stylists recommendations in consumers verbatim responses in Johnsons survey
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is nonsensical given that as Conair has argued Mr. Johnsons survey did not
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sufficiently encompass salon purchasers s in his survey universe. Indeed, the absence
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of such comments actually bolsters Conairs position that Mr. Johnson surveyed the
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wrong universe.
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Fifth, SHCs assertion that some of Mr. Johnsons methods were somehow
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affirmed by Dr. Stewarts use of the same methods (e.g., use of photographs instead of
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actual products) is disingenuous given that Dr. Stewart clearly stated that his mission
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was to closely track Mr. Johnsons approach without endorsing it, while correcting for
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some errors to eliminate the points of disagreement and thereby hone in on the noise
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generated by Mr. Johnsons improper survey. (Conairs Motion to Exclude Johnson
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Survey, p. 8 fn. 12; Stewart Decl. 8-11).
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Sixth, SHCs attempt to dodge Dr. Dhars criticism of Mr. Johnson for failing to
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include a dont know or no opinion response option to the survey questions
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assessing confusion is unpersuasive. As an initial matter, Dr. Dhars criticism is legally
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sound, supported by the by the very page of the treatise that SHC cites:
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the survey can use a quasi-filter question to reduce guessing by

providing dont know or no opinion options as part of the question
(e.g., Did you understand the guarantee offered by Clover to be for more
than a year, a year, or less than a year, or dont you have an opinion?). By
signaling to the respondent that it is appropriate not to have an opinion, the
question reduces the demand for an answer and, as a result, the inclination
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to hazard a guess just to comply.

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Diamond, Shari S., Reference Guide on Survey Research, in REFERENCE MANUAL ON
SCIENTIFIC EVIDENCE (THIRD), 359, 390 (Federal Judicial Center 2011).

Moreover, SHCs ad hominen assertion that Dr. Dhar blatant[ly] mischariz[ed]
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the Johnson survey on this point is simply false. Dr. Dhars specifically stated his
criticism was that Mr. Johnsons failed to include dont know or no opinion
response option(s) for the survey participants. While this error could have been
mitigated to an unknown degree (but SHC has provided no data) by Mr. Johnsons up-
front instruction to the participants (i.e., If you dont know the answer to any of the
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questions, it is okay to say so,) and his instruction to interviewers to record a dont
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know response if one was spontaneously offered, the fact remains that Mr. Johnsons
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survey did not give an express response option of dont know or no opinion to the
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key questions.
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V.
JOHNSON HAS NOT JUSTIFIED HIS FAILURE TO CONTROL FOR
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GUESSING
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CREATED BY HIS SURVEY

SHC has not adequately addressed or explained the patent defects Dr. Dhar
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BASED
ON
THE
COLOR
MATCHING
DYNAMIC
identified in the product lineups and colors Mr. Johnson used in his survey.
First, Johnson lacked a sufficient evidentiary basis for lining up products grouped
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by product type rather than manufacturer. Indeed, Johnson admitted in deposition that
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he: (1) never visited a single salon: (2) has no idea how the Being, Being Sexy, and
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Sexy Hair products are displayed in salons: (3) visited only about six retail stores in the
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Chicago area but took no pictures or notes; and (4) he has no idea how often these
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products are grouped or displayed together by manufacturer as opposed to by product
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type (e.g. shampoos of all manufacturers together, hair sprays of all manufacturers
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together, etc.) (as discussed above). And SHCs CEO admitted that 80% of the time,
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SHCs six product lines are kept together and sold on one or more shelves together in
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retain stores. (See Dhar Dec. 23, citing Johnson Depo at 82:12-16.); Conair provided
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similar evidence regarding how its Being Sexy products are grouped. (Simmons Decl.
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Given that, SHCs conclusory defense of Mr. Johnsons product lineups is not
compelling. SHC offers only a vague overview of Mr. Johnsons selection process:
When asked how the other products shown in the shelf displays were
selected and arranged, Johnsons testimony makes clear that he selected
the products based on what was available in the marketplace among top
salon/professional hair care product manufacturers, sold roughly adjacent
to Rusk product, and were products that closely matched by type (i.e.,
shampoos, conditions, etc.) the new Being Sexy products in the new trade
dress at issue.
(Opposition 8:15-21). It does not explain what products were available in the
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marketplace, which ones were sold roughly adjacent to Rusk product, or the like. In
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truth, Mr. Johnson has never possessed nor provided substantial evidence justifying the
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specific manner in which he grouped the products for his lineup.
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Second, Mr. Johnsons supposed innocent intent is irrelevant. SHCs assertion
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that Mr. Johnson picked products as they exist and did not discriminate based on
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color or any trade dress element whatsoever is immaterial. (Opposition 8:21-23). The
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point is that he designed in a color matching dynamic that is apparent even to the
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untrained eye that grossly skewed the results toward a finding on actionable confusion.
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Third, Mr. Johnsons boundless notion of SHCs protectable trade dress caused
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him to inadequately control for the color matching dynamic he created in his survey.
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(Motion to Exclude Johnson Survey 18:17-23). Mr. Johnson was severely criticized by
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a District Court in the Ninth Circuit for using the same tactic in Skechers U.S.A. v.
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Vans, Inc., 2007 WL 4181677, *9 (C.D. Cal. 2007). As in Skechers, here Johnson
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could have and should have selected a control product that had colors similar to the
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Being Sexy products (e.g., pink and black) but which lacked the specific trade dress
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attributes claimed by Sexy Hair in this case (e.g., vertical lettering running down the
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length of the bottle, etc.).
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VI.
JOHNSON HAS NOT EXPLAINED OR JUSTIFIED HIS MANY CODING

ERRORS WHICH DROVE UP "CONFUSION" NUMBERS IN HIS
SURVEY
SHCs defense of Johnsons coding errors again relies on a "straw man" and
ignores the manifest fact that Mr. Johnson included any reason given to find a
"confused" person, even those outside the scope of SHCs own claimed trade dress.
SHCs straw man is its claim that Conair has argued that "color is not a part of
the trade dress that creates an overall impression on consumers." (Opposition 9:3-4).
That is not true. Conair and Dr. Dhar have correctly argued that while "contrasting
colors" specifically defined in SHCs trade dress definition may be protectable, simple
colors such as red, pink, blue are not per se owned by SHC.
By uncritically asserting that the Sexy Hair trade dress includes "total image or
overall design or appearance" i.e. everything SHC and Johnson are improperly
seeking to encompass many unprotected and unprotectable features into their supposed
"confusion" figures. The Skechers Court criticized Johnsons for the same basic
reasons, stating: "In sum, Vans expert [Johnson] shows the Skechers shoe that most
resembles Vans shoes . . . And employed a control that would not allow for the weeding
out of sources of confusion other than the [protected] checkerboard design, such as the
shape of the shoe." Id. at *9-10.
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VII. CONCLUSION
For the reasons set forth herein, Conair respectfully requests that the Court issue
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Dated: June 25, 2012
NEWPORT TRIAL GROUP

A Professional Corporation
Scott J. Ferrell
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By: /s/Scott J. Ferrell

Scott J. Ferrell
Attorneys for Defendant,
CONAIR CORPORATION
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I hereby certify that on June 25, 2012, I electronically filed the foregoing
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REPLY IN SUPPORT OF DEFENDANT CONAIR CORPORATIONS MOTION

TO EXLCUDE THE REPORT AND TESTIMONY OF SURVEY EXPERT
PHILIP JOHNSON; MEMORANDUM OF POINTS AND AUTHORITIES with
the Clerk of the Court using the CM/ECF system which will send notification of such as
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noted below all counsel of record.

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/s/ Scott J. Ferrell

Scott J. Ferrell
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ATTACHMENT 4
In The Matter Of:

GEORGEBATESON
v.
PUBLICSTORAGE,INC.
___________________________________________________
LEHMAN,KENTW.,M.D.,FAAFPVol.1
April27,2012
_____________________________________________
KENT W. LEHMAN, M.D., FAAFP - 4/27/2012

Page 18
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Page 20
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what is that? Plaintiff's?
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A Probably struck the patient's car.
Q Okay. "That caused flexion," dash, "extension 3
4
and torsion of neck and lower back."
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A Correct.
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Q Right?
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A Yes.
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Q "Patient's head hit window. Also" -9
A "Bumped right leg."
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Q And it says, "Patient was wearing seatbelt
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harness, head rest, was not knocked out"; correct?
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A Correct.
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Q Two lines down it says, "Patient left scene in
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auto"?
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A "Driveable."
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Q "Driveable"?
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A Yeah.
Q Okay. What were your diagnoses or findings as 18
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of this date?
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A On initial exam, "Auto accident: Cervical
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strain, lumbosacral strain and a right inguinal hernia."
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Q So what is that symbol before those things?
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Is that an "A"?
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A "A" is for assessment.
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Q That's your assessment?
Q It looks like DOI, date of incident, May 17th?

A Yes.
Q Do you see that?
A Right.
Q So this is about five weeks after the auto
accident.
Does that sound right to you?
A Yes.
Q Given that does this appear to be the first
time you ever saw Mr. Bateson?
A In as much as I can recall, I don't recall him
being a patient before this.
Q Okay. Is it your normal practice to ask a
patient or a new patient such as Mr. Bateson if he had
any prior injuries or hospitalizations or surgeries?
A I don't see that I asked him that.
Q And I've looked at other notes which we'll go
over and I didn't see you ask him that.
Does that mean you didn't ask him.
A Apparently I did not. I was just taking care
of the incident at hand.
Q Okay. Did you ever try to make a distinction
medically between the injuries that Mr. Bateson suffered
from the 2008 auto accident versus the injuries he
claimed to have suffered from the self storage incident
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A Uh-huh.
Q And those were all from the auto accident;
correct?
A That's correct.
Q The cervical strain -- in lay terms, cervical
is the neck area; right?
A That's correct.
Q From this auto accident Mr. Bateson claimed
injuries to his neck; correct?
A At this initial exam, yes, he did.
Q And subsequently didn't you treat Mr. Bateson
for injuries to his head and neck from the auto accident
itself?
A Apparently I probably did, yes.
Q Did you refer him out to have MRIs of the
cervical spine because of injuries or potential injuries
to his neck?
A That I don't recall.
Q The assessment, are these all the diagnoses
that you made regarding Mr. Bateson at least at this
visit?
A That's correct.
Q Was this the first time you ever saw
Mr. Bateson? And I'll direct you to -A I believe so.
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where the door supposedly hit him on the head?

A Not per se, no.
Q I mean, as you sit here today, could you
distinguish what injuries he suffered from the storage
facility with the door allegedly hitting him on the head
versus the injuries he suffered from the auto accident,
without speculating?
A Without speculating, one of the things I noted
from my own note on this first initial examination is
that he had a pretty good range of motion on his neck
which is 60 degrees to the left and to the right, and he
was upwardly mobile to about 45 degrees and he was able
to flex his neck down to about two inches from the
chest.
Q Did it get worse during the time you treated
him before the supposed injury at the self storage unit?
A Without seeing subsequent notes, I can't say
but -Q So back to my question: Did you make any
medical finding as to which injuries Mr. Bateson
supposedly suffered from the incident at the self
storage facility versus the 2008 auto accident?
A I don't know that I would have been able to do
that.
Q And today you're not able to do that, are you?
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Merrill Corporation
Los Angeles - 800-826-0277
Los Angeles
www.merrillcorp.com/law

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A Not completely, no.

Q Not just completely. At all.
Can you make any medical conclusions as to
which injuries Mr. Bateson suffered from the 2008 auto
accident as compared to what he claimed to have suffered
from the blow to the head at the storage facility?
A Just give me a moment. No, I would not.
Q You can't do that, can you?
A No.
Q Let's mark as Exhibit No. 4 -- as we go
through the exhibits, can we give them to court
reporter.
A Yes, sure.
Q Those too as well.
A Yes.
Q We'll mark as Exhibit No. 4, Mr. Lehman's
August 14th, 2008, notes.
(Defendant's Exhibit No. 4 was marked for
identification by the Certified Shorthand Reporter and
is attached hereto.)
THE WITNESS: Okay. I wanted to make a
comment earlier about this date of this note.
MR. HARDIN: Yeah.
THE WITNESS: I think that this note may be a
note in error. It's supposed to be a note dated 2009
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is, in fact, the flip side of his neck injury chart.

Q Okay. Other than the document being on the
backside of another note, is there any other basis you
have for believing that the August 14th, 2008, date is
in error and it's actually August 14, 2009?
A Also because of the nature of the notes.
There is no mention of the auto accident. This is the
note about the head trauma, cervical strain and
concussion.
So it's -- it's congruent with my other notes
related to the storage unit injury.
MR. CHAMASMANI: I'm sorry, are talking about
the August 14th?
THE WITNESS: I am. And rather than me change
that date, I'm just -- I'm leaving it as it is, but I'm
telling you it's my error on that date.
BY MR. HARDIN:
Q In your notes regarding the auto accident in
2008 of Mr. Bateson's, didn't you address continuing
neck pain complaints of Mr. Bateson?
A I most likely did. You probably had some.
Q Didn't he also complain about pain in his head
from the auto accident? Headaches?
A He may have.
Q Didn't he also complain about pain and
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and I didn't want to bring that up earlier, but it's

within the -- I just went over this same thing with my
girl earlier today and that note dated August 14th,
2008, is, in fact, supposed to be a note dated August
14th, 2009, and it's my error because that's my
handwriting -MR. HARDIN: Okay.
THE WITNESS: -- for placing that particular
date there.
BY MR. HARDIN:
Q And what is the basis for you believing this
is an error?
A This entire chart was kept intact and the
other dates are either stamped in or written in by my
staff or myself, but I see it's on the -- it's on the
opposite page of this particular note, so it made me
realize that the correct date should have been August
14th, 2009.
Q Because it's on the backside of another note?
A That is correct.
Q Logically, why do you conclude that if it's on
the backside that it needs to be a different date?
A Well, it's just -- it's all part of -- it's
all part of this one file. If it were a loose sheet by
and of itself, you know, I'd have some question. But it
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numbness in his fingers of his left hand from the auto

accident?
A If I noted that, then he may have.
Q Didn't he complain about hypersensitivity to
light in his eyes from the auto accident in 2008?
A He may have.
Q So, the fact that you have a note that refers
to continuing neck pains and head injury or head pain,
that itself doesn't indicate necessarily that it's from
the storage injury; correct?
A It's just my belief that it is. Excuse me for
a second.
(Brief interruption in proceedings.)
MR. HARDIN: I'll mark as Exhibit No. 5, a
one-page, handwritten note dated April 30, 2009.
BY MR. HARDIN:
Q Can you take a look at this note?
A (Witness complies.)
Q Could you confirm that these are your notes of
the visit with Mr. Bateson on April 30, 2009?
A Yes.
Q These notes relate to Mr. Bateson's claimed
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Los Angeles - 800-826-0277
Los Angeles

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that you saw with Mr. Bateson before the storage

injury -- alleged storage injury?
A We seem to be in close agreement. He's noting
60 degrees to the right and left and that's consistent
with what I noted as well.
Q Okay. Did Mr. Bateson ever tell you of any
past medical history he had regarding injuries to his
head, neck or lower back?
A He didn't -Q Sorry, prior to the auto accident?
A Not that I recall.
Can I take two or three minutes?
Q Of course. This is a good time.
A I'll be right back.
(Brief recess taken.)
MR. HARDIN: Back on the record.
BY MR. HARDIN:
Q Dr. Lehman, I've marked as Exhibit No. 7, a
May 12, 2009, report from a Dr. Cohen, an orthopedist.
BY MR. HARDIN:
Q And this, again, about three weeks before
Mr. Bateson claims he was injured at a storage facility.
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and lumbar spine."

Do you see that?
A Yes.
Q So it's your understanding that that's a
misspelling of your name, but that's referring to you?
A I believe so, yes.
Q Do you believe you were Mr. Bateson's GP for
the auto accident?
A Yes, I do.
Q The section under "Present Complaints" on the
first page?
A Yes.
Q "At the present time," which is May 12th,
2009, "the patient has constant neck pain, left arm pain
and numbness in his little and ring finger."
Do you see that?
A Yes.
Q That was consistent with what he complained to
you of from the auto accident; correct?
A It is.
Q "He has constant back pain and radiating left
leg pain."
That's consistent with what Mr. Bateson
complained to you of from the auto accident; correct?
A That's correct.
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I just want to go over some of the complaints that he

registered in that visit.
So, on the first page of Exhibit No. 7, the
chief complaint, the patient reported being a
48-year-old male who presented with the chief complaint
of neck and back pain; correct?
A Correct.
Q That was consistent with his chief complaint
to you from the auto accident; correct?
A Yes.
Q Did you refer the patient to Dr. Cohen?
A No, I did not.
Q Do you know Dr. Cohen?
A I only know of him.
Q Okay. In the "History of Injury" section on
the first page -A Yes.
Q -- it has a narration of certain facts about
the accident. Near the bottom of that paragraph it
says, "He was then seen by a GP who started him on
medication including Vicodin, Norco, Soma and Motrin in
April of this year, Dr. Layman," L-a-y-m-a-n.
I think that's referring to you.
A Yes, I would think so.
Q "Who was the GP, ordered an MRI of cervical
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Q It says, "The pain wakes him up at night. It

is improved with sitting in a reclining chair. It is
worse with standing, sitting or walking."
Do you see that? That's also consistent with
what he complained to you of regarding the auto
accident; correct?
A For the most part, correct.
Q The next sentence says, "He complains of
weakness in his left hand and numbness and tingling in
his left hand to his little and ring finger."
He also complained to you of those problems
from the auto accident; correct?
A That's correct.
Q Go to page two of his report?
A (Witness complies.)
Q Under "Physical Examination" near the bottom
it says, "He is very pleasant and cooperative for the
exam. He is in a lot of discomfort secondary to pain.
He is sitting in a wheelchair."
Do you see that?
A Yes.
Q So, apparently, Mr. Bateson came to this visit
on May 12th, 2009, with Dr. Cohen in a wheelchair?
A Yes.
Q And that's three weeks before he was allegedly
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injured at the storage facility?

A Correct.
Q Before the alleged injury at the storage
facility, did Mr. Bateson present to you in significant
pain such that he wasn't able to do things during the
physical examination?
A No.
Q Go to the third to last page of this report
which is -- it has the drawings of the front and back of
the body?
A Yes.
Q And I'll submit to you that the plaintiff has
stated under oath that these markings were ones that he
filled in on the report to indicate the symptomatology
or problems he was experiencing from the auto accident?
A Correct.
Q Are those consistent with the symptoms or
problems that you observed on Mr. Bateson from the auto
accident?
A For the most part I -- I didn't -- I didn't
recall recording that many problems with the head or
scalp area. But the other areas, yes.
Q Okay. Would you put that down?
A Yes.
Q We'll mark as Exhibit No. 8, your June third,
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prescription for Norco number 60 and Soma number 40.

Q Okay. Does this note or entry reflect
everything you recall Mr. Bateson telling you regarding
his alleged injury at the storage facility on June
third, 2009?
A Correct.
Q Is there anything that he told you about the
injury that's not included in this note?
A Not that you recall.
Q Does this note reflect all of your
observations or conclusions regarding Mr. Bateson's
condition?
A For the most part, yes.
Q Is there anything about this visit that you
recall from Mr. Bateson that's not included in this
note?
A No.
Q Under -- is it "O"? Is it "Observation"?
A Yes.
Q Okay. The second line, I'm still looking at
it?
A Oh, yes.
Q You had that -- is it HFFNT?
A That's HEENT.
Q Oh, what is that again?
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2009, note regarding Mr. Bateson.

THE WITNESS: Yes.
BY MR. HARDIN:
Q Is Exhibit No. 8 a true and correct copy of a
June third, 2009, note or injury that you made regarding
Mr. Bateson?
A Yes, correct, it is.
Q Can you read it into the record, please?
A "On 6-3-09, today, patient went to storage
unit, lifted sliding garage roll up. When he was
standing under it, it fell and struck him on the head.
Well-developed, well-nourished white male, marked
distress. Head, eyes, ears, nose, throat: The top of
skull tender, swollen. Neck stiff. Decreased range of
motion. Sixty degrees both directions. Sixty degrees
up and chin within two inches of chest. Pupils equal,
reactive. Reactive light and accommodation. Intact
extraocular moments. Canal and tympanic membrane clear.
Question mild nystagmus. Chest, clear A&P," that means
anterior/posterior. "Heart, normal sinus rhythm. Zero
murmur. Abdomen, soft nontender. Assessment:
Concussion, cervical strain." And plan was a
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A Head, eyes, ears, nose, throat.

Q And what does that mean? What did you do
there?
A That's just a general -- that's referring to
the -Q To the region?
A To the region, correct.
Q Okay. And then it's dash, "Top of skull"?
A Correct.
Q And then it says, "Tender, swollen"?
A Referring to the top of his skull.
Q So did you observe the top of his skull?
A I think I just noted what he told me.
Q Okay.
A I did not see anything, no.
Q And in evaluating him, was there any cut or
bleeding coming from his skull?
A I don't believe so.
Q Was there any blood in his hair?
A None noted.
Q You would have noted that; correct?
A I would have, yes.
Q If there was a cut on the top of his skull,
you would have put that in your notes; correct?
A I would hope I would have, yes.
11 (Pages 38 to 41)
Merrill Corporation
Los Angeles - 800-826-0277
Los Angeles
ATTACHMENT 5
In The Matter Of:

SEXYHAIRCONCEPTS,LLC
v.
CONAIRCORPORATION
___________________________________________________
KRUGMAN,GARYD.Vol.1
February13,2013
_____________________________________________
GARY D. KRUGMAN - 2/13/2013

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A Well, my understanding, and this could be 19

and 20 and we can take them together, because I know
20 is right around the bend -Q Yes.
A -- that the Plaintiff's marks are being
challenged on descriptiveness and/or genericness
grounds.
The merely descriptive portion of the
statute, it's a term of art in the trademark law, and
my role has been to explain in a general way what
Examiners look at and consider when they are refusing
a mark based on merely descriptiveness or genericness
without giving an opinion on the descriptive or
generic character of any of the marks at issue, which
I'm not going to do.
Q The decision by a Trademark Examiner to find
a mark descriptive or generic or to not find a mark
descriptive or generic, that decision can be reviewed
by a District Court in the Federal Circuit Court;
correct?
A It can be reviewed by the TTAB in an
opposition or cancellation action, and it can be
reviewed in the District Court or a Federal Circuit,
assuming that it's properly before one of those
courts.
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Up until the registered mark has reached its

five-year anniversary, after that, a registration
cannot be canceled on descriptiveness grounds.
That's not one of the grounds, once a registration
reaches that five-year anniversary.
Q And that's called an incontestable mark;
correct?
A No, you can -- you can have a five-year
registration that has not had the Section 15
Incontestability Affidavit. That affidavit, you're
eligible to file it after five years, but if you
don't, you still can't cancel the mark on
descriptiveness grounds regardless whether an
Incontestability Affidavit has been filed or not.
Q Has Sexy Hair Concepts filed an
Incontestability Affidavit for its product, Sexy
Hair?
A I believe it has.
Q Even if a mark like Sexy Hair has passed the
five-year threshold, the issue of whether it's
descriptive is still relevant in terms of the
strength of the mark for purposes of analyzing the
infringement claim; correct?
A I don't know that I would say it like that,
that the descriptiveness of it is relevant.
But, certainly, in any registration,

registered mark, whether it's one-year old or 50
years old, you can look at the strength or weakness
of a mark, and that's relevant to an infringement
issue.
Q Whether it's merely descriptive or highly
suggestive or on the spectrum of strength; correct?
A Well, there's two kinds of strength. One is
the sort of inherent strength, suggestive,
descriptive. Again, a more than five-year-old
registration can't be challenged on descriptiveness
grounds, but you also have commercial strength, and
that's sort of separate even though it's related to
the inherent strength.
You could have a mark that is, for example,
by its nature descriptive or surname or something
like that where it's not inherently protectable.
Take McDonald's, for example, as a surname,
that was a mark that is -- was refused because it was
a plural of a very common surname.
But through use and promotion, it's become
one of the strongest marks commercially in the world.
So the concepts, they are related, but they
are different.
Q When you refer to "commercial strength," is
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that a synonym for secondary meaning?

A No, it's not a synonym for secondary
meaning.
You can have a mark that can be considered a
weak mark, but there's enough secondary meaning there
to give it protection. It's a question of scope of
protection, and that sort of thing.
Q And the commercial strength of a mark is
always relevant in evaluating whether a junior mark
infringes on it, even if the senior mark has passed
the five-year threshold; correct?
A Yes, strength of a mark is always a criteria
in determining infringement.
Q In this case, you have not and will not
opine on the strength of Sexy Hair's marks; correct?
A That's correct.
Q And you will not opine on the strength or
potential strength of Conair's marks either; correct?
A Yes, correct.
Q You won't opine on the strength or potential
strength of Sexy Hair's trade dress either, will you?
A No.
Q Do you know the definition of
Conair's -- strike that.
Do you have an understanding as to how Sexy
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Hair Concepts defines its trade dress in this case?

A No.
Q That's not part of your assignment?
A That's correct.
Q What weight, if any, will a Federal Court
give to the PTO's initial refusal to register
Conair's marks?
A I don't know.
Q You don't know what the 9th Circuit -- what
weight the 9th Circuit will give on that?
A No, I don't know. The courts will vary
depending on the circuits that they are in.
It's certainly not a preclusive effect.
It's certainly not bound by it, but in terms of
the -- you know, if there's any consideration of it
at all, I don't know.
Q What impact do the registrations or their
prosecution history in the PTO have on Conair's
Counterclaims seeking to cancel Sexy Hair's marks?
A I'm not sure I'm understanding what you're
asking, sir.
Q A large part of your report deals with the
prosecution history before the PTO; right?
A Yeah.
Q How, in your understanding, does that impact
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Conair's counterclaims to cancel or disclaim aspects

of Sexy Hair's registrations?
A I'm not sure how to answer that in terms of
impact.
I think when a registration is in existence,
there are certain presumptions that flow from that in
terms of validity and ownership, and I think it's
important for a court to understand how the
examination process works, who the Examiners are in
terms of their background and what they do and how
they examine a case.
Certainly, a court is not bound by it any
more than the TTAB would be bound by it.
Q You said that registrations give rise to
certain presumptions?
A Yes.
Q Focusing on Sexy Hair's three registered
marks we've discussed, Sexy, Sexy with star and Sexy
Hair -A Uh-huh.
Q Those are all registered marks; correct?
A Yes.
Q Sexy Hair has been registered more than five
years; right?
A Correct.
Q The other two have not?

A That's correct.
Q What presumptions exist, in your
understanding, because of the registrations of the
Sexy and Sexy with a star mark? I'll treat those
together unless you think we should break them out
separately.
A No, you can treat them together.
They basically -- the statutory presumptions
from a principal register registration -- and I might
not be precise on this -- but basically, it's a
presumption of the validity of the mark, the
ownership of the mark, the exclusive right to use the
mark in connection with the goods by the owner.
Q This is specifically governed by a statute;
correct, one or more statutes?
A Yes.
Q You would defer to the statutory law on this
point; correct?
A I would, yeah.
Q Focusing on the Sexy Hair mark and noting
that it's been in existence for more than five years,
what additional presumptions, if any, apply to that?
A The incontestability of that registration
means that the presumptions of validity, ownership
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and exclusive right to use, which are rebuttable

presumptions with respect to the first two we were
talking about, those become conclusive with respect
to the incontestable registration, subject to certain
defenses that are always available.
Q For the Sexy Hair mark, there would be a
presumption regarding validity, ownership, exclusive
right to use and then incontestability; correct?
A Yes.
Q The validity and ownership presumptions are
rebuttable, as you noted?
A The validity and ownership are conclusive
with respect to the incontestable registration. They
are rebuttable as to the ones that are not in
contest.
Q Sexy and Sexy with a star?
A Yes, that's my understanding.
Q Sexy Hair Concepts never had to show
secondary meaning for any of its marks before the
Trademark Examiner, did it?
A Not that I am aware of. I think they were
approved based on the inherent distinctness of
it -- of them.
Q Given that you agree that if Conair can
rebut the presumption of inherit distinctiveness,
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Sexy Hair Concepts is not entitled to a presumption

of secondary meaning in this case?
MR. RUDDY: Objection. Outside the
scope of the testimony. Calls for an ultimate
conclusion.
A Right now, there is no issue of secondary
meaning with respect to the registrations. They were
issued without any showing of secondary meaning.
But those two nonincontestable registrations
can be challenged on grounds such as descriptiveness.
The Challenger would have the burden of
proving that the mark is descriptive, and then the
burden -- if, in fact, that burden was met, then it
would shift to Sexy Hair to show that the mark had
acquired distinctivness or was otherwise not
descriptive.
Q So the presumption for validity goes away
once Conair meets its burden?
Is that your understanding?
A Well, if the rebuttable presumption is
rebutted, yeah.
Q That's more of an evidentiary law issue
about the different types of presumption.
But I think you explained it well. Okay?
Paragraph 21, you state that you expect to
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testify on the issues of the protectability of trade

dress of the packaging for a product.
Do you see that?
A Yes.
Q Why are you opining on that in this case, in
your understanding?
A Well, again, I understand just in a general
way, there's an issue regarding the issue of trade
dress infringement, and again, without opining on the
specific trade dress in this case -- which I'm not
going to do -- I thought -- and I was asked to
discuss it in general terms, there's -- this is sort
of a technical area where trade dress of a product is
never inherently distinctive, but trade dress for
packaging of a product may be inherently distinctive.
And I was just going to try to and will try
to explain that concept in terms of how trade dress
packaging works in terms of how it's, you know,
treated in the Trademark Office in the context of an
application.
Q Has Sexy Hair Concepts made any application
for protection of its trade dress?
A Not that I am aware of.
Q Has Conair?
A Not that I know.
Q So it's a hypothetical then for you to talk

about if Sexy Hair had or does make such an
application; correct?
A Not necessarily talking about Sexy Hair's,
an application for trade dress or an application from
Conair, I just know that trade dress packaging is an
issue in the case and that the Patent and Trademark
Office treats trade dress packaging like any other
trademark and it's protectable like any other
trademark.
Q When you say "trade dress packaging," what
do you mean?
A In other words, trade dress packaging would
be the design of this bottle.
Q You're holding up a bottle of water?
A Bottle of water.
Q Okay.
A It may not be protectable because it's
pretty ordinary, but I'm talking about the packaging
of a product, as opposed to the product itself and
how those types of trade dress or trademarks are
examined and analyzed.
Q Paragraph 22, you say you expect to testify
on the difference between the trademark use of a
term, as opposed to a nontrademark fair use of a
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term; right?
A Yes.
Q Have you analyzed as part of your work in
this case any third-party uses of Sexy, Sexy with a
star or Sexy Hair?
A No.
Q Have you tried to reach any conclusion as to
whether there are any nontrademark fair uses of those
terms?
A No, I was just going to apply it in a
general way, again, because this can be a concept
that is difficult to understand by a layman.
Q But in this case, you're not aware of any
trademark uses of Sexy Hair's trademark or
nontrademark uses; correct?
A No, I think in the materials I reviewed,
there was some search reports with other marks, but I
was just sort of looking at that quickly for
background, and I certainly don't know that there's
been any use of any of those marks or anything like
that.
Q Paragraph 23, you expect to testify on "The
PTO's practice of required disclaimers of
unregisterable components of an otherwise
registerable composite mark," and it goes on from
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there.
What's your understanding of the reason for
that?
A My understanding is that one of the
registrations being challenged relates to an issue of
a disclaimer requirement.
One of the registrations is being challenged
on a number of grounds, but one of the -- one of the
things for relief that's being requested is that the
registration be canceled in the absence of a
disclaimer.
And I was going to explain in a general way,
again, because disclaimers is a technical part of
Patent and Trademark Office practice, explain what
disclaimers are, how they are required and just,
again, try to demystify that technical concept.
Q In this case, do you have any opinion
regarding whether the word "Sexy" should be
disclaimed with the mark "Sexy" with a star?
A I haven't been asked to opine on that.
Q And you have not reached any conclusion on
that, of course?
A No, other than the fact that the Sexy Hair
mark with a disclaimer of hair is the subject of an
incontestable registration which precludes its
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challenges on a descriptiveness grounds.

Q Right. You agree that whether a mark is
unitary is a question of fact?
A Yes.
Q It's based on the reaction of the average
purchaser for the goods?
A Well, for my portion of the case, it's based
on how the Examiner perceives it, because my
really -- the focus of my testimony is going to be on
how these marks are examined and what the Examiner
does.
But, yeah, the Examiner is trying to decide
what a purchaser would perceive.
Q The Examiner's decision as to what a
purchaser would perceive, you agree that can be
considered and reconsidered by a District Court;
correct?
A Well, let me answer it this way: If an
Examiner, for example, accepts evidence of use of a
mark and passes the mark to allowance and it becomes
a registration, a District Court can decide whether,
in fact, the mark as used is the same as the mark as
registered and make a determination on the use or
nonuse of the mark.
So, in effect, they are questioning or
potentially questioning what the Examiner is doing,

but I have never seen it -- I have never seen a mark
canceled because they said the Examiner made a
mistake.
Q Okay. But you agree that District Courts
can consider that issue in litigation?
A The issue of nonuse and abandonment?
Q Yes.
A Sure.
Q You agree that regardless of what a
Trademark Examiner finds on whether a mark is
unitary, that question is for the District Court and
ultimately the jury if it's brought to litigation;
correct?
A In the sense that the court or a jury can
decide that the registered mark is not the mark
that's being used.
Q Paragraph 23 which we're looking at, you
say, "and how it relates to the concept of
determining whether a mark is unitary and not
separable into individual components."
A Right.
Q What do you mean by that?
A Well, I kind of elaborate a little bit on
that in Paragraph -- let me find it.
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Q It's Page 14, Section H of your report.

A Yeah. I get into the disclaimer issue with
a little more detail at 54 and 55, 56, 57, and I was
trying to give some very straightforward examples to
illustrate what I was trying to explain.
Q What degree of deference, if any, need a
District Court give to a Trademark Examiner's
decision to allow a registration without a
disclaimer?
A I can't answer that. I don't know.
Q You don't know for the 9th Circuit, in
particular, do you?
A That's correct.
Q Similar question: What degree of deference,
if any, must a District Court give to a Trademark
Examiner's determination as to whether a mark is a
composite mark consisting of separable word and/or
design elements or a unitary mark?
A In the context of a disclaimer?
Q Yes.
A I don't know.
Q And you don't know what the law is in the
9th Circuit for that?
A In terms of what deference they give a PTO
Examiner; no.
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Q Do you know if they give any?

A I don't.
Q Paragraph 24, you indicate you "expect to
testify on the PTO's criteria in finding that an
applied foremark is unregisterable because it is
considered a mutilation of the mark as actually
used."
Do you see that?
A Yes.
Q What do you mean by a "mutilation"?
A Well, I elaborate on that in 58 and 59 at
Page 15.
This is sort of a technical term and how the
Trademark Office uses it in examining an application.
And as I explain in those 58 and 59, you can
have a situation where a drawing of a mark is not, in
the Examiner's view, a complete mark as shown in the
actual evidence of use.
And so a technical basis for rejecting the
application by the Examiner is that it's a mutilation
of the mark as used, because there's stuff missing
from the drawing that should be included.
And, again, as I explain in 59, there's some
discretion there and some sort of leeway, but I just
wanted to explain that concept, because to a
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nontrademark attorney -- or even to a trademark

attorney -- that is not something that comes up a lot
and it's sort of confusing.
Q Your definition of "mutilation" involves a
situation where the specimen or drawing submitted to
the Trademark Examiner is deemed insufficient;
correct?
A Yeah, it doesn't -- it doesn't match in the
Examiner's view. There's enough of a difference that
they would say that the mark as used does not agree
with the mark sought to be registered.
Q But you are not saying that not using a mark
in commerce -- strike that. It's a double negative.
As part of your expert work in this case,
you agree that if a trademark applicant has not used
a mark in commerce, that is a ground for a Federal
District Court to cancel the registration; correct?
A If a mark is not used in commerce and it's
an use-based application, it's a void application.
So that can be canceled.
Q By the court?
A By the board, by the court; yeah.
Q Are you aware of any evidence that Sexy Hair
Concepts ever used the Sexy trademark in commerce?
A That is not something that is my -- that is
in my sort of area where I'm going to be asked to

testify on, so no.
Q Are you aware of any evidence indicating
that Sexy Hair Concepts ever used the Sexy with star
mark in commerce?
A Again, it's not something that I have been
given information about or intend to testify on.
Q I'll ask you about Paragraph 25, and I think
it's a good time for a break.
A Okay.
Q Paragraph 25, you indicate you "Expect to
testify on the nature of availability of searches
that are often conducted in advance of one's
adoption, use and application to register a
trademark," and it goes on from there.
A Uh-huh.
Q In this case, you did not review any
documents regarding any trademark searches of Conair,
did you?
A Unless it was part of the materials provided
to me, I don't recall sitting here now, unless it was
provided to me in terms of Paragraph 15-F.
But it's certainly nothing that I looked at
that related to my discussion of searching, which is
just more of a general explanation of that topic.
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Q In this case, you're not opining that Conair

did not conduct a diligent or adequate trademark
search before using its mark or trade dress; correct?
A No, I was just talking about the general
practice of searching, and as I say in Paragraph 60
and 61, '2 and '3.
Q You're not opining as to the diligence or
adequacy of any trademark searches that may have been
done by Sexy Hair Concepts; correct?
A That's correct.
Q It was just a general discussion about
trademark searches, in general?
A Yes.
Q Why are you including that in your report,
in your understanding?
A I don't know. There may be an issue about
the diligence of Conair, but I haven't been -- I have
not discussed that with anybody.
I was just asked to opine on how the process
works and what the usual practice is and the
different types of searches that are available.
Q You have no basis to opine on the purported
diligence or lack of diligence of Conair in
conducting any trademark searches before using its
mark or trade dress; correct?
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A That's right.
Q You have no basis to opine on Conair's
intent in selecting its mark or trade dress for the
Being Sexy products; correct?
A Correct.
Q That would be speculative, wouldn't it?
A I have no idea, so yeah, it would be
speculative. I have no intention on giving an
opinion on any of those.
MR. HARDIN: Want to take five minutes.
(Whereupon, a recess was held from
11:55 a.m. to 12:10 p.m.)
BY MR. HARDIN:
Q Moving on in your report, sir, to Subsection
4, "Expected Testimony, Subpart A, Examination of
Trademark Applications."
Go to Page 7.
A Okay.
Q Paragraph 29 and 30, you talk about, "If
there's no basis to refuse the registration to the
applicant, the mark will be approved."
In this case, you're not saying that the
Trademark Examiner's examination of the Sexy Hair
marks was correct or not, are you?
A I have no reason to think it's incorrect,
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but I am not giving any opinion specifically on that,

no.
Q You're not opining as to the correctness or
incorrectness of the Trademark Examiner's review of
the Conair trademark applications, are you?
A No, just the procedure in the Trademark
Office, how it relates, in general, and -Q And in this case generally, you're not
opining on the correctness of the Trademark
Examiner's reviews of these marks, are you?
A That's right.
Q You're not opining on the deference or the
standard of review that the District Court in our
case must give the Trademark Examiner's conduct, are
you?
A That's correct.
Q You're just talking about the process and
procedures before the Trademark Board?
A Trademark Examiner and then the Trademark
Board.
Q And in this case, it didn't -- nothing ever
got to the Trademark Board; correct?
A Correct.
Q So it's really the Trademark Examiner level?
A Correct.
Q That's the lowest level of the trademark

examining process; correct?
A That's the initial examination, yes.
Q The information in this Subpart A of Roman
numeral IV, Examination of Trademark Applications, is
that all basically black-letter law regarding the
procedures involved?
A Well, it's not in the statute, it's in the
Trademark Manual of Examining Procedure.
Q That's the TMEP; correct?
A Yes.
Q So that information in this Subpart A of
your report is all in the TMEP; correct?
A Should be.
Q And in your career as a lawyer, you have
regularly challenged the correctness of Trademark
Examiner's decisions or conclusions in certain cases;
correct?
A Sure.
Q You've won some of those as a lawyer and
you've lost some; correct?
A Sure.
Q You're not saying the Trademark Examiners
are always right or that their decisions are always
correct, are you?
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A I'm not saying that.

Q And you are not saying what degree of
deference our court should give the trademark
examination process here, are you?
A I would not be so presumptuous as to tell
the court that, no.
Q I was kind of hoping you said yes to that so
I could tell the court that you said yes.
A Let the record show he said yes.
Q Subpart 4-B starting at the bottom of Page
8, Subpart B, says, "The nature of TTAB opposition
and cancellation proceedings."
When I was reading this, the one thing that
struck me is what I've said before, which is: None
of the marks at issue in this case -- or at least in
your opinion -- ever got to the level of the TTAB;
correct?
A Yeah, there's been no oppositions or
cancellation actions before the TTAB that I am aware
of.
Q Is the information in this Subsection B
generally contained in the TMEP?
A No.
Q Where does it come from?
A The procedure at -- in terms of oppositions
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scope of the testimony.
A I would have no idea.
BY MR. HARDIN:
Q Do you have an opinion as to whether the
term or mark "Sexy" creates a separate commercial
impression from the term or mark "Sexy Hair"?
scope of the testimony.
A I haven't been asked to give an opinion and
I have no opinion.
BY MR. HARDIN:
Q Do you have any opinion as to whether the
term or mark "Sexy" with star creates a separate
commercial impression from the term or mark "Sexy
Hair"?
A I haven't been asked to give an opinion and
I have no opinion.
Q Did the Trademark Examiners make any
specific findings on that issue for both Sexy or Sexy
with a star?
A Again, the sense that the evidence of use
was accepted and the mark registered, the examining
attorney found that the mark sought to be registered
was supported by the specimens.
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Q Did -- in your view of the records and the

File Histories, is there any indication that the
Trademark Examiner specifically found that "Sexy"
created a separate commercial impression from "Sexy
Hair"?
A By virtue of the fact that the specimens
were accepted, the Examiner is not ever in a
situation where the mark as being allowed is going to
specifically state that, because the only reason that
issue would come up is if the Examiner found that it
didn't -- it wasn't supported by the specimens, in
which case, it would come up in the context of an
Office Action and an objection.
But when it's approved, it necessarily means
that the Examiner found it to be proper.
Q And the only basis for your conclusion that
the Trademark Examiner found that "Sexy" creates a
separate commercial impression from "Sexy Hair" is
that the mark was approved?
A Yes.
Q Same thing for "Sexy" with a star and "Sexy
Hair"?
A Yes.
Q The only basis was the approval of the mark?
A The only basis for my view that the Examiner
found that was by virtue of the fact that the marks

were approved.
Q You don't know what amount of consideration
or deliberation the Trademark Examiner or Examiners
gave that issue, do you?
A Not in that specific instance. I have no
idea.
Q You don't know what thought process he or
she went through, do you?
A Of course not.
Q It's not reflected in the trademark files,
is it?
A No.
Q I'm going to focus more generally on your
work as an expert.
Have you done any other cases as an expert
witness for or with the Eckert Seamans firm?
A No.
Q Have you done any other cases as an expert
witness for or on behalf of Sexy Hair Concepts other
than this case?
A No.
Q Have you done any cases as an expert witness
for or with a party against Sexy Hair Concepts in any
litigation?
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A No.
Q Have you done any work as an expert witness
in which Conair or any of its affiliates were parties
to the case?
A I mean, I don't know all of their
affiliates. Not to my knowledge.
Q Not to your knowledge?
A No.
Q Have you ever been co-counsel with the
Eckert Seamans firm in any litigation?
A No.
Q Who approached you to work on this case?
A I think initial contact was with Mr. Ruddy
sitting next to me.
Q Before Mr. Ruddy contacted you, did you have
any relationship with anyone at the Eckert Seamans
firm?
A Relationship? I mean, I have known Roberta
Jacobs just because we have both been in the field
for quite awhile, and so I think that my recollection
is that Mr. Ruddy approached me because Ms. Jacobs
suggested my name and thought because of my
background and experience, it might be useful.
So I don't really have a relationship with
Ms. Jacobs other than that I have known her as a
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ATTACHMENT 6
Case 1:14-cv-21559-UU Document 199 Entered on FLSD Docket 03/06/2015 Page 1 of 12

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 14-CV-21559-UNGARO/OTAZO-REYES
COLIN BOWE and BRIAN MORGAN,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
CLASS ACTION
PUBLIC STORAGE, a Maryland

Real Estate Investment Trust,
Defendant.
____________________________________
PUBLIC STORAGES MOTION TO EXCLUDE TESTIMONY OF PLAINTIFFS
EXPERT TIM RYLES
I.
INTRODUCTION
Public Storage moves under Federal Rules of Evidence 702 and 403 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to exclude the testimony of Plaintiffs
insurance expert, Tim Ryles. Mr. Ryles proposed testimony consists of inadmissible legal
opinion, irrelevant assertions, and improper contract interpretations. This testimony is not
helpful to the jury, will confuse the issues, and waste the Court and the jurys time. Moreover, it
is highly prejudicial, and has no probative value whatsoever.
Mr. Ryles testimony has been excluded on these very same bases by numerous federal
courts across the country, including this Court. For the reasons set forth below, Public Storage
respectfully requests that this Court follow suit and exclude Mr. Ryles testimony.
II.
BACKGROUND
Plaintiffs accuse Public Storage of deceptively marketing its self-storage Tenant
Insurance Program (TIP). They seek to certify two classes a Florida subclass, and a
nationwide class. On behalf of the putative Florida subclass, Plaintiffs assert a claim under
Floridas Deceptive and Unfair Trade Practices Act (FDUTPA), F.S.A. 501.201, et seq., and
1
other state law claims. On behalf of the putative nationwide class, Plaintiffs assert three claims
under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et
seq.
Mr. Ryles submitted his expert report on January 26, 2015. See Declaration of Quyen Ta
(Ta Decl.), Ex. H (Ryles Report). He did not submit a rebuttal report to any of Defendants
expert reports.
Mr. Ryles is the former Commissioner of Insurance for the State of Georgia,
These claims include the Second and Fourth Causes of Action for Breach of Contract and/or
Breach of Covenant of Good Faith and Fair Dealing) (contract claims)) and other state law
claims for relief including unjust enrichment and unconscionability (Counts III and V).
1
and Plaintiffs tender his opinion in an attempt to show that Public Storage, a non-insurance
entrepreneur, extend[ed] their reach into insurance, which resulted in unfortunate
consequences. Ryles Report at 10. But Mr. Ryles report and deposition testimony are littered
with impermissible legal conclusions, inflammatory argument, and irrelevant detours into
statutes, model rules, and issues that have no bearing on the matters the jury must decide. For
instance, Mr. Ryles opines that:
Public Storages transaction runs afoul of Floridas anti-fronting statute, Florida

section 624.404(4) even though this Court ruled that Plaintiffs may not plead
that claim in their Amended Complaint;
in states where Public Storage personnel hold a limited license, Public

Storage is in breach of the Producer Licensing Model Act Section 18 even
though Mr. Ryles also admits that such Model Acts are not binding law in any
jurisdiction.
Public Storage is violating Section 626.112, a third degree felony in Florida

even though Mr. Ryles has no basis for making this assertion and even though he
is not barred as a lawyer in any state.
Such opinions do little to assist a jury in deciding the ultimate issues in this case and they
are highly prejudicial to Public Storage. Public Storage thus seeks to exclude the entirety of Mr.
Ryles opinion contained within his expert report and deposition.
III.
ARGUMENT
Federal Rule of Evidence 702 governs the admissibility of expert testimony, which
provides that a witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion if (b) the testimony is based upon
sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
In applying this rule, trial judges have the special obligation to act as gatekeepers to
ensure only expert testimony that is both relevant and reliable is admitted. Daubert v. Merrell
2
Dow Pharms., Inc., 509 U.S. 579 (1993). District courts are charged with this gatekeeping
function to ensure that speculative, unreliable expert testimony does not reach the jury under the
mantle of reliability that accompanies the appellation expert testimony. Rink v. Cheminova,
Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citation omitted).
Rule 702 imposes three specific restrictions on the admissibility of expert testimony
qualification, reliability, and assistance. The Eleventh Circuit has set forth a three-pronged test
to determine whether expert testimony is admissible. Under the test, district courts must engage
in a rigorous inquiry to determine whether: (1) The expert is qualified to testify competently
regarding the matter he intends to address; (2) the methodology by which the expert reaches its
conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the applications of scientific, technical, or
specialized expertise, to understand the evidence or to determine a fact in issue). Rink, 400 F. 3d
at 1291; See also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309 (11th Cir. 1999).
Further, sometimes expert opinions that otherwise meet the admissibility requirements
may still be excluded by Rule 403. Exclusion under Rule 403 is appropriate if the probative
value of otherwise admissible evidence is substantially outweighed by its potential for unfair
prejudice, confusing the issues, or wasting time. U.S. v. Frazier, 387 F.3d 1244, 1263.
Finally, the proponent of expert testimony always bears the burden of demonstrating
that the expert is qualified to render an expert opinion, that the opinion is reliable, and that the
opinion would assist the trier of fact in resolving a disputed issue of material fact. McDowell v.
Brown, 392 F.3d 128, 1298 (11th Cir. 2004).
Plaintiffs, as the offering party of Mr. Ryles expert testimony, bear the burden of
demonstrating by a preponderance of the evidence that Mr. Ryles is (1) qualified to render an
opinion, (2) that his proffered testimony is reliable and (3) that it will assist the trier of fact.
As Public Storage explains further below, Plaintiffs have failed to demonstrate prong
three, that Mr. Ryles testimony will assist the trier of fact. This is because he improperly
provides legal opinions and opines on statutes and Model Rules that are irrelevant to this case.
A.
Mr. Ryles report is rife with improper legal conclusions even though he is
not an attorney and is otherwise unqualified to render legal opinions.
Mr. Ryles entire report consists of a litany of legal opinions which are inadmissible. The
Eleventh Circuit has made clear that testifying experts may not offer legal conclusions. Cook
ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1112 n. 8 (11th Cir.
2005).
Mr. Ryles is not an attorney, nor has he been admitted to practice law in any state.
Although he has taken courses from Concord Law School, an unaccredited online law school run
by Kaplan, he is completely unqualified to provide any testimony regarding whether Public
Storage has violated any laws related to insurance. Ta Decl., Ex. I (Ryles Depo. at 105-106).
Yet, incredibly, Mr. Ryles examined Public Storages Tenant Insurance Program (TIP) and seeks
to render the following legal conclusions, which include inflammatory accusations related to
how Public Storage has committed third degree felonies, and that Public Storage has violated
state insurance law in every state where the TIP is offered.
Mr. Ryles opines regarding purported violations of Florida law:
Public Storage is violating Section 626.112, a third degree felony in Florida.

(citing Fla. Stat. Section 626.112(9)). Ryles Report at 6.
Public Storages transaction runs afoul of Floridas anti-fronting statute, Florida

Statutes Section 624.404(4). Ryles Report at 8.
When Public Storages insurance broker, New Hampshire Insurance Company

(NHIC) cedes the risks it assumes in Florida to Public Storage Insurance
Company Hawaii Limited (PSICH) [Public Storages reinsurer], that transaction
is the equivalent of an unauthorized sale of insurance, a third degree felony under
4
Fla. Section 626.902. Ryles Report at 8.

Mr. Ryles opines regarding purported violations of Hawaii law:
Public Storages reinsurer, PSICH, fails to comply with its own domestic states
statute. Ryles Report at 9.
[T]he TIP programsells property insurance to third parties in whom Public

Storage has no insurable interest and over whom Public Storage or its Hawaii
captive have no control. Ryles Report at 9.
Mr. Ryles opines regarding purported violations of law in general:
[I]n every state in which it offers the TIP, Public Storage is violating state
insurance law, either because it holds no license and, therefore, is unauthorized to
solicit, negotiate, or sell insurance or because it holds a limited license but fails to
2
make the required disclosures. Ryles Report at 6-7.
Every time one of its employees presented the TIP to a class member, Public
Storage violated the insurance laws. Ryles Report at 7.
Public Storage has no insurable interest in its tenants stored personal property.
Ryles Report at 7-8.
Mr. Ryles opines regarding purported violations of Model Act provisions:
Public Storage violates the NAIC Model Producer Act because its employees
sell, solicit, and negotiate insurance, and are acting as insurance produces and
are engaged in practices restricted to licensed insurance agents. Ryles Report at 5
3
and Ryles Depo. at 17.
Even in states where Public Storage personnel hold a limited license, Public
Storage is in breach of the Producer Licensing Model Act Section 18. Ryles
4
Report at 6 and Ryles Depo. at 19-20
See also Ryles Depo. at 47: 2-10 (Q: you state Thus, in every state in which it offers the
TIP, public Storage is violating state insurance law. A: I would certainly stand by that.).
3
See also Ryles Depo at 17:5-8 (the actions of the personpersonnel who handle the
transactions constitutes the offer, selling, soliciting and negotiating of insurance).
4
See Ryles Depo at 19:24-20:3 (Q:you go on to say that even in states where Public Storage
has a limited line license, you think they are also in violation of Section 18, is that correct? A: By
the non-disclosure, yes.)
5
Not only are Mr. Ryles legal musings flat out wrong, they are simply irrelevant as they
do not relate to any statutes or claims in Plaintiffs Amended Complaint (discussed further
below). They also intrude upon the Courts ability to interpret and apply the law, and therefore
constitute inadmissible legal conclusions. See Cook, 402 F.3d at 112 n. 8; United States v. Long,
300 Fed. Appx. 804, 815 (11th Cir. 2008).
Mr. Ryles adventures in legal pontificating have been the subject of exclusion orders in
numerous other federal courts. In Whiteside v. Infinity Cas. Insur. Co., 2008 WL 3456508, *9
(M.D. Ga. 2008), the court granted a motion in limine to preclude Mr. Ryles from asserting that a
Georgia statute applied because such opinion constitutes an inadmissible legal conclusion.
Similarly, in Leathers v. State Farm Mutual Automobile Insur. Co., 12-cv-00198-SCJ (N.D. Ga.
5
2012) , the court excluded Mr. Ryles opinion stating that Defendants conduct violates
Georgia law because it was an improper legal conclusion. As the court in Leathers explained,
Mr. Ryles legal opinion should be inadmissible because witnesses are prohibited from
interpreting a statute because the Court determines the meaning of the law, and the jury
determines whether a party properly complied with the law. Id.
Finally, this Court should exclude these numerous improper legal opinions under Federal
Rule of Evidence 403 because they will confuse or mislead the jury given that [e]xpert
testimony may be assigned talismanic significance in the eyes of lay jurors, and, therefore, the
district courts must take care to weigh the value of such evidence Frazier, 387 F.3d at 1263.
In sum, by lobbing explosive chargessuch as the erroneous suggestion that Public Storage is
committing third degree felonies on a daily basisMr. Ryles opinions will unduly prejudice
Public Storage.
See Ta Decl., Ex. J (Dec. 2, 2002 Order, Dkt. 174)

6
B.
Mr. Ryles opinions are irrelevant and should be excluded.
Mr. Ryles opinions about the applicability of numerous laws and different provisions of
the National Association of Insurance Commissioners (NAIC) Model Acts are also irrelevant,
unhelpful, and have a high likelihood of confusing the jury.
Mr. Ryles spends a significant portion of his report opining on how Public Storages TIP
program violates various portions of the NAIC Model Producer Act. Ryles Report at 5, 6. Yet,
as Mr. Ryles admitted during his deposition, NAIC does not have any authority to promulgate
binding law in any jurisdiction. Ryles Depo. at 11. Nor does it have authority to issue binding
interpretations of any law in any jurisdiction. Id. Thus, because the Model Act is not even a
binding law, and does not relate to the claims of this case, Mr. Ryles should not be allowed to
testify about how Public Storage allegedly violated some provision of the Model Act.
Mr. Ryles also seeks to testify that Public Storage violated numerous state laws and
statutes that will not be before the jury. See Ryles Report at 5-6 (Public Storage violated F.S.A.
6
626.112); 8-9 (Public Storage violated Floridas Anti-fronting statute) ; 7 (Public Storage
7
violated insurance laws in general); 9-10 (PSIC fails to comply with Hawaiis statutes). In their
Amended Complaint, Plaintiffs only bring RICO, Florida Deceptive and Unfair Trade Practices
Act, breach of contract, unjust enrichment, breach of covenant of good faith and fair dealing, and
unconscionability claims. See Dkt. 79.
Again, another federal court has prevented Mr. Ryles from opining on statutes or laws
Plaintiffs attempted to amend their complaint to add a violation of Floridas Anti-fronting

statute, but this Court rejected that attempt. See Dkt 78 at page 6. Mr. Ryles should not be able
to opine on a statute that the Court explicitly held could not be added to this case.
7
Mr. Ryles admitted during his deposition that even though he believed that Public Storage
violated these laws, he knew of no regulatory or judicial bodies finding such violations. Ryles
Depo at 105-108.
7
that are not applicable to the case because such opinions are both irrelevant and unhelpful to the
jury. This Court should do the same. In State Natl Ins. Co. v. Access General Agency, Inc.,
2007 WL 4563860 *1 (N.D. Ga. 2007), the court excluded Mr. Ryles testimony and explained
that his opinion would not be helpful to the jury as he testified about Georgia statutes related
to insurance, none of which are applicable to this case. Similarly, here, allowing Mr. Ryles to
opine about statutes that are unrelated to this case could easily serve to confuse or mislead the
jury Id. (citing Frazier, 387 F.3d at 1266). See also Leathers, supra, (holding that Mr. Ryles
could not provide any testimony regarding an insurance policy that was irrelevant to plaintiffs
breach of contract claim).
Indeed, allowing Mr. Ryles to render opinions about the Model Act or other Statutes or
laws that are not at issue, and opining that Public Storage has violated them, would be highly
prejudicial under Federal Rule of Evidence 403. There is no probative value in any reference to
these irrelevant laws and Model Act sections, and any usefulness would be greatly outweighed
by the danger of unfair prejudice to Public Storage.
C.
The Court should not permit Mr. Ryles to opine or testify regarding the
interpretation of a contract.
Plaintiffs also intend to have Mr. Ryles opine about Public Storages contracts with its
tenants. More specifically:
He concludes that despite the language contained within Public Storages

Lease/Rental Agreement and Insurance Addendum, Public Storages disclaimer
in no way insulates Public Storage agents from insurance regulatory
requirements. Ryles Report at 4-5.
Mr. Ryles explains that based on the language of these agreements, Public Storage
fails to make the required disclosures. Id. at 7.
Mr. Ryles states that Public Storages Rental Agreement repeatedly informs the
renter that only the renter is responsible for insuring the personal property and
Public Storage has no interest whatsoever in insuring it and bears no
responsibility for any loss to the renters property. Id. at 8.
8
Mr. Ryles analyzes the Master Policy issued by New Hampshire Insurance
Company and concludes that he can find no such entity as the purported
Tenants of Public Storage and that it is pure fabrication to create the false
impression that tenants have some role in securing and managing the insurance
policy under which they are insured. Id. at 7.
Mr. Ryles opinions are nothing more than personal interpretation of the TIP and its
contractual provisions. Mr. Ryles testimony is not based upon any technical or other specialized
knowledge that would assist the Court or the jury in understanding the meaning of the TIP. In
effect, Plaintiffs seek to offer the testimony of Mr. Ryles to instruct the Court and the jury on
how it should interpret the Lease/Rental Agreement, Insurance Addendum, and Master policy.
Opinion testimony is inadmissible to interpret contract language. See N. Am. Specialty
Ins. Co. v. Wells, No. CV412-146, 2013 WL 4482455, at *2 (S.D. Ga. Aug. 19, 2013) (The
Eleventh Circuit and courts within the Eleventh Circuit have excluded expert testimony where it
is simply a reiteration or recasting of a parties interpretation of a contract.); Cook, 402 F.3d at
1111. Indeed, the interpretation of the insurance policy is an issue of law decided by the court.
See Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 774 (11th Cir. 2000) (The interpretation of an
insurance contract is a question of law subject to de novo review).
This Court has previously excluded Mr. Ryles testimony because he sought to offer his
own interpretation of a contract. In Nova Cas. Co. v. Waserstein, No. 04-20755-CIV, 2005 WL
5955694 (S.D. Fla. Sept. 7, 2005), this Court held that defendants would not be permitted to
offer the testimony of Mr. Ryles regarding the interpretation of a pollution exclusion clause
contained within an insurance policy. Id at *3. This Court concluded that the construction of
an insurance policy is a matter of law for the court, and expert testimony on legal matters is not
admissible. Id. at *1 (citing Southern Pine Helicopters, Inc. v. Phoenix Aviction Managers,
Inc., 320 F.3d 838, 841 (8th Cir. 2003)). Citing the Sixth Circuit Court of Appeals, this Court
9
explained that [t]he construction of unambiguous contract terms is strictly a judicial function;
the opinions of percipient or expert witnesses regarding the meaning(s) of contractual provisions
are irrelevant and hence inadmissible. Id., citing Sheet Metal Workers, Int'l Ass'n, Local Union
No. 24 v. Architectural Metal Works, Inc., 259 F.3d 418, 424 n. 4 (6th Cir. 2001).
In Nova Cas. Co., this Court prevented Mr. Ryles from invading to purview of both the
Court and the jury by not allowing Mr. Ryles to testify about his interpretation of a contract and
to conclude that plaintiffs breached it.
The Court should similarly hold here and not allow Mr.
Ryles to testify about the interpretation of any contracts related to the TIP.
IV.
CONCLUSION
The Court should not allow Mr. Ryles to offer any opinions set forth in his Expert Report
or Deposition as they constitute improper legal opinions, are irrelevant, or seek to interpret
contracts. The proffered opinion of Mr. Ryles fails the Daubert standard, and the requirements
of FRE 702 and 403, and therefore, his testimony and report should be excluded from this case.
Dated March 6, 2015
Respectfully submitted,
s/David P. Ackerman___________________
David P. Ackerman (Florida Bar No. 374350)
dackerman@alslaw.com
Ackerman, Link & Sartory, P.A.
777 South Flagler Drive
Suite 800 East
West Palm Beach, Florida 33401
Tel: (561) 838-4100
Fax: (561) 838-5305
and
Keker & Van Nest LLP
633 Battery Street
San Francisco, CA 94111-1809
Tel: (415) 391-5400
Fax: (415) 397-7188
10
John W. Keker
(unopposed pro hac vice motion to be filed)
jkeker@kvn.com
Steven A. Hirsch
shirsch@kvn.com
David J. Silbert
dsilbert@kvn.com
Quyen Ta
qta@kvn.com
Paven Malhotra
pmalhotra@kvn.com
Counsel for Defendant Public Storage
I hereby certify that on March 6, 2015, a true and correct copy of the foregoing was filed
electronically via CM/ECF and a copy served via hand delivery upon counsel for plaintiffs at the
addresses listed below.
s/David P. Ackerman
David P. Ackerman
SERVICE LIST
Colin Bowe and Brian Morgan v. Public Storage
Case No. 14-21559-Civ-Ungaro/Otazo-Reyes
United States District Court, Southern District Of Florida
Scott B. Cosgrove
scosgrove@leoncosgrove.com
James R. Bryan
jbryan@leoncosgrove.com
Andrew B. Boese
aboese@leoncosgrove.com
Alec H. Schultz
aschultz@leoncosgrove.com
Len Cosgrove, LLC
255 Alhambra Cir. Ste. 424
Coral Gables, FL 33134
David M. Buckner
dbu@grossmanroth.com
Seth E. Miles
sem@grossmanroth.com
Brett E. von Borke
bvb@grossmanroth.com
Grossman Roth, P.A.
2525 Ponce de Leon, Ste. 1150
11
ATTACHMENT 7
Reference Guide on Survey Research

sh a r i se i dm a n di a mon d
Shari Seidman Diamond, J.D., Ph.D., is Professor of Law and Psychology, Northwestern University,
Evanston, Illinois, and Senior Research Fellow, American Bar Foundation, Chicago, Illinois.
contents
I. Introduction, 231
A. Use of Surveys in Court, 233
B. A Comparison of Survey Evidence and Individual Testimony, 235
II. Purpose and Design of the Survey, 236
A. Was the Survey Designed to Address Relevant Questions? 236
B. Was Participation in the Design, Administration, and Interpretation
of the Survey Appropriately Controlled to Ensure the Objectivity
of the Survey? 237
C. Are the Experts Who Designed, Conducted, or Analyzed the Survey
Appropriately Skilled and Experienced? 238
D. Are the Experts Who Will Testify About Surveys Conducted by Others
Appropriately Skilled and Experienced? 239
III. Population Denition and Sampling, 239
A. Was an Appropriate Universe or Population Identied? 239
B. Did the Sampling Frame Approximate the Population? 240
C. How Was the Sample Selected to Approximate the Relevant Characteristics of the Population? 242
D. Was the Level of Nonresponse Sufcient to Raise Questions About the
Representativeness of the Sample? If So, What Is the Evidence That
Nonresponse Did Not Bias the Results of the Survey? 245
E. What Procedures Were Used to Reduce the Likelihood of a
Biased Sample? 246
F. What Precautions Were Taken to Ensure That Only Qualied Respondents Were Included in the Survey? 247
IV. Survey Questions and Structure, 248
A. Were Questions on the Survey Framed to Be Clear, Precise,
and Unbiased? 248
B. Were Filter Questions Provided to Reduce Guessing? 249
C. Did the Survey Use Open-Ended or Closed-Ended Questions? How Was
the Choice in Each Instance Justied? 251
D. If Probes Were Used to Clarify Ambiguous or Incomplete Answers, What
Steps Were Taken to Ensure That the Probes Were Not Leading and
Were Administered in a Consistent Fashion? 253
229
Reference Manual on Scientic Evidence
E. What Approach Was Used to Avoid or Measure Potential Order or

Context Effects? 254
F. If the Survey Was Designed to Test a Causal Proposition, Did the Survey
Include an Appropriate Control Group or Question? 256
G. What Limitations Are Associated with the Mode of Data Collection Used
in the Survey? 260
1. In-person interviews, 260
2. Telephone surveys, 261
3. Mail surveys, 263
4. Internet surveys, 264
V. Surveys Involving Interviewers, 264
A. Were the Interviewers Appropriately Selected and Trained? 264
B. What Did the Interviewers Know About the Survey and
Its Sponsorship? 266
C. What Procedures Were Used to Ensure and Determine That the Survey
Was Administered to Minimize Error and Bias? 267
VI. Data Entry and Grouping of Responses, 268
A. What Was Done to Ensure That the Data Were Recorded Accurately? 268
B. What Was Done to Ensure That the Grouped Data Were Classied
Consistently and Accurately? 268
VII. Disclosure and Reporting, 269
A. When Was Information About the Survey Methodology and Results
Disclosed? 269
B. Does the Survey Report Include Complete and Detailed Information on
All Relevant Characteristics? 270
C. In Surveys of Individuals, What Measures Were Taken to Protect the
Identities of Individual Respondents? 271
Glossary of Terms, 273
References on Survey Research, 276
230
ATTACHMENT 8

MIAMI DIVISION
CASE NO.: 14-CV-21559-UNGARO/OTAZO-REYES
on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
CLASS ACTION

Defendant.
____________________________________/
PUBLIC STORAGES MOTION TO EXCLUDE TESTIMONY FROM PLAINTIFFS
DAMAGES EXPERT ROBERT A. STONE
I.
INTRODUCTION
Public Storage moves under Federal Rules of Evidence 702 and 403 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to exclude the testimony of Plaintiffs
damages expert, Robert A. Stone. Most of Mr. Stones proposed testimony concerns a matter
that the jury will not decide: how to allocate any judgment among individual class members. As
a result, Mr. Stones testimony is inadmissible under Rule 702 because it is not helpful to the
jury and also inadmissible under Rule 403 because it will waste time, confuse the issues, and
mislead the jury.
The remainder of Mr. Stones proposed testimony consists of tallying the Access Fees
reported by Public Storage for its Tenant Insurance Program. This testimony is inadmissible for
two reasons. First, it amounts to nothing more than basic addition and multiplication, and
therefore is not a proper subject of expert opinion evidence. And secondand more
fundamentallyit lacks any legal basis and is unreliable. As Mr. Stone freely admits, he simply
assumed that the amount of Access Fees received by Public Storage is the proper measure of
damages without considering whether that assumption was reasonable or appropriate. As will be
explained below and in Public Storages concurrently-filed Motion for Summary Judgment, that
assumption is not reasonable or appropriate. Thus, Mr. Stones opinions and calculations are
unreliable and inadmissible.
II.
BACKGROUND
In this lawsuit, Plaintiffs Brian Morgan and Colin Bowe alleges that the putative class
members would have paid less for insurance had Public Storage disclosed that it was profiting
from the Tenant Insurance Program. Plaintiffs so allege notwithstanding the fact that Public
Storages rates are lower than its competitors for comparable (and even superior) coverage
1
including competitors who disclose in their contracts that they profit from the insurance, as
Plaintiffs allege Public Storage should have done. See Decl. of Capri Haga in Support of
Defendants Mot. For Summary Judgment, 16.
Plaintiffs present a single expert on damages: Mr. Stone. In his five page expert report
two pages of which comprise a list of the materials he considered and his biographyMr. Stone
opines on (1) a methodology for allocating any damages award among individual class members,
and (2) an amount of aggregate damages for the proposed nationwide class and Florida subclass.
See Omnibus Declaration of Quyen Ta (hereinafter, Ta Decl.), Ex. A (Stone Report) at 2.
With respect to aggregate damages, Mr. Stone merely assumesbased on instructions
from Plaintiffs counselthat the measure of damages is the total amount of Access Fees
received by Public Storage. See id. at 2 (I was asked to assume that the Access Fees paid to
Public Storage by PS Hawaii represent the damages for the entire National Class.) and 3 (same
for putative Florida subclass). Nowhere in his report does Mr. Stone opine that this assumption
is reasonable or appropriate. On the contrary, in his deposition, he expressly disclaimed any
opinion on whether or not his assumption was reasonable. See Ta Decl., Ex. B (Stone Depo.
excerpts) at 38:25-39:4 (Q. Do you believe its reasonable to assume in this case that damages
are the same thing as the access fee? A. I think thats a legal conclusion that I cant reach.)
To calculate the nationwide Access Fees, Mr. Stone simply tallied the Access Fees
reported by Ernst & Young, the accountant for Public Storage Insurance Company of Hawaii.
See Ta Decl., Exh. A (Stone Report) at 2-3. Similarly, to calculate Florida Access Fees, Mr.
Stone tallied the premiums collected in Florida as reported by Public Storage, then multiplied
that sum by the nationwide percentage of premiums that flowed back to Public Storage as Access
Fees. Id. at 4.
By his own admission, Mr. Stone is no insurance expert and did not consult with anyone
involved in the insurance industry in preparing his opinions. See Ta Decl., Exh. B (Stone Depo.)
at 20:13-19. He has no opinion on whether the putative class members overpaid for their
insurance, id. at 28:3-13, or whether the market price for insurance would change at all if Public
Storage did not charge an Access Fee. Id. at 57:12-58:5 and 58:19-23. He did not compare
Public Storages Tenant Insurance Program rates to its competitors rates, id. at 40:8-12, and did
not even find Public Storages specific business practices relevant to forming his opinions. Id. at
23:18-21. When asked whether his opinions are supported by any economic or business
analysis of the self-storage insurance market, Mr. Stone replied, No, sir. Id. at 29:4-8.
III.
ARGUMENT
Under Daubert and Rule 702, the Court is obligated to conduct a rigorous analysis
prior to admitting expert evidence. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.
2004) (Rule 702 requires a rigorous three-part inquiry). As this Court explained in United
States v. Masferrer, the need for an exacting analysis is especially significant since the
experts opinion can be both powerful and quite misleading because of the difficulty in
evaluating it. . . . Indeed, no other kind of witness is free to opine about a complicated matter
without any firsthand knowledge of the facts in the case, and based upon otherwise inadmissible
hearsay 367 F. Supp. 2d 1365, 1371 (S.D. Fla. 2005).
The Eleventh Circuit has interpreted Rule 702 and Daubert to require three criteria be
satisfied before expert opinions are admissible: (1) the expert is qualified to testify competently
regarding the matters he intends to address; (2) the methodology by which the expert reaches
conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a fact in issue. Rink v.

Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir. 2005). The party seeking to introduce
expert testimonyin this case, Plaintiffbears the burden of proving that the testimony is
admissible by a preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d
1300, 1306 (11th Cir. 1999).
A.
Mr. Stones opinions on payments to individual class members are

inadmissible because such payments are beyond the scope of the jurys
consideration and therefore they are not helpful to the jury.
Mr. Stones testimony concerning a methodology for calculating damages to individual

class members is inadmissible because it will not assist[ ] the trier of fact . . . to determine a fact
in issue. Rink, 400 F.3d at 1291-92.
The jury will be called upon to decide an aggregate amount of damagesif anyto be
awarded to the class. The jury will not, however, award a specific amount of damages to each
individual class member, or decide upon a methodology for allocating the aggregate award
among class members. That task will be performed, if at all, by a special master or other claims
administrator after a judgment is entered, under the Courts supervision. See Newberg on Class
Actions 12:15 (5th ed. 2014) (If a class action is tried and the defendant is found liable, a
court or jury may assess an aggregate damage award, which then must be reduced to individual
payments. Alternatively, a court or jury may determine liability and leave individual damage
calculations to further proceedings.). See also Manual on Complex Litigation 21.661, 4th ed.
2004 Federal Judicial Center (describing use of a claims administrator or special master to
manage distribution of individual payments to class members). Indeed, to persuade this Court to
certify a class under Rule 23(b)(3), Plaintiffs argued the jury would only have to decide the total
value of the undisclosed kickbacks to Public Storage and [a]fter that, it is simply a matter
[sic] calculating each Class members share of the total payment for storage insurance to
4
determine what portion of the kickback is theirs and should be refunded to them. Dkt. 163 at
17-18. Plaintiffs never suggested the jury would decide each class members share of the total
payments. Id. If Plaintiffs are doing so now, this Court has yet additional grounds to deny class
certification under Rule 23(b)(3).
Mr. Stones proposed methodology for determining individual damages is thus irrelevant,
not helpful to the jury, and inadmissible. See, e.g., United States v. Merrill, 08-20574-CR, 2010
WL 3981158, at *6 (S.D. Fla. Oct. 8, 2010) (excluding expert testimony that would not assist
the jury understand the evidence or determine a fact at trial). Because the proposed testimony is
irrelevant, it should also be excluded under Fed. R. Evid. 403 as likely to waste time, mislead the
jury, and confuse the issues.
B.
Mr. Stones opinions regarding aggregate damages are not grounded in the
issues in the case and are not a proper subject for expert testimony.
Mr. Stones testimony regarding aggregate damages should also be excluded because (1)
they will not assist[ ] the trier of fact . . . to understand . . . a fact in issue through the
application of . . . specialized expertise and (2) because Mr. Stones analysis is not sufficiently
reliable. Rink, 400 F.3d at 1291-92.
1.
Mr. Stones opinions regarding aggregate damages require no

specialized expertise.
First, Mr. Stones tallying of the Access Fee collected by Public Storage requires no
specialized expertise or knowledge. It is simple arithmetic in the case of nationwide Access
Fees, and arithmetic and multiplication in the case of Florida Access Fees. See Ta Decl., Exh. A
(Stone Report) at 3-4. Accordingly, it is not a proper subject for expert testimony, and is
inadmissible. See City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 565 (11th Cir.
1998) (expert testimony is inadmissible if the trier of fact is entirely capable of determining
whether or not to draw [the experts] conclusions without any technical assistance from the
5
expert); see also Shapiro v. Art Leather, Inc. (In re Connolly N. Am., LLC), 398 B.R. 564, 575576 (Bankr. E.D. Mich. 2008) (Simple addition and division does not qualify as scientific,
technical, or other specialized knowledge under Fed. R. Evid. 702); Short v. Anangel Spirit
Compania Naviera, 2002 WL 31740707, at *3 (E.D. La. Dec. 3, 2002) (expert CPA excluded on
ground that [t]he jury is fully capable of making simple mathematical calculations).
2.
Mr. Stones opinions regarding aggregate damages are unreliable.
Mr. Stone assumes that nationwide and Florida aggregate damages are equivalent to the
Public Storages nationwide and Florida Access Fees. This assumptionand the calculations
and opinions on which it is basedlack any legal basis and are unreliable.
First and most tellingly, Mr. Stone refused to opine that the assumption itself was
reasonable. He says nothing of the sort in his expert report and during his deposition he refused
to opine that the assumption was reasonable. See Ta Decl., Exh. B (Stone Depo.) at 38:25-39:4.
Mr. Stones reticence is remarkable and demonstrates that his testimony is unreliable and
inadmissibleas Mr. Stone himself has argued. In other cases, Mr. Stone has asserted that the
Certified Public Accountants standards of professional conduct require him to determine
whether his assumptions are reasonable. See Ta Decl., Exh. C (Stone report in Esperanza De
Saad v. Banco Industrial De Venezuela, 2007 WL 7701451) (Circuit Court of Florida, 11th
Judicial District, March 30, 2007) at 4 & 6 (criticizing opposing expert because he performed
no independent analyses or procedures to verify the reasonableness of the assumptions he
utilized in making his simple mathematical calculations and dismissing resulting opinions as
not in adherence with the standards, guidelines and responsibilities of a CPA rendering an
Expert Report.).
Any reluctance to label his assumption as reasonable is understandableit is not.
With respect to the RICO claim, Plaintiffs have no basis whatsoever to allege that the damages
6
proximately caused by any purported RICO violations are the total Access Fees received by
Public Storage. As explained in Public Storages concurrently filed Motion for Summary
Judgment, which is incorporated herein by reference, Plaintiffs damages theory is that, had
Public Storage disclosed that it was profiting from the Tenant Insurance Program, the market
price of the insurance would have declined. See Defendants Motion For Summary Judgment at
12. But with discovery now closed, Plaintiffs have adduced no evidence that such a disclosure
would have lowered the market rates at all, let alone that it would have slashed them by the
entire amount of the Access Fees. See id. at 13. Thus, by tallying Public Storages nationwide
Access Fees, Mr. Stone has calculated an amount that Plaintiffs cannot seek from the jury as
damages. Consequently, his assumption that nationwide damages equal nationwide Access Fees
is flawed, unreliable, and unhelpful to the jury. See A.A. Profiles, Inc. v. City of Ft. Lauderdale,
253 F.3d 576, 585 (11th Cir. 2001) (reversing judgment, holding that district court erred in
admitting and relying on expert testimony where damages theory of compensation was
unsupportable). 1
Mr. Stone fairs no better when it comes to calculating damages for the Florida causes of
action. First, although he purports to calculate the total damages for the Florida tenants, he
never addresses the central question: damages for what? Unjust enrichment? Breach of
contract? Deceptive Trade Practices Act? Good Faith? Unconscionability? Mr. Stone provides
no analysis or methodology that would explain how damages for any claim is equivalent to the
Florida Access Fee. Compare Gastaldi v. Sunvest Resort Communities, LC, 709 F. Supp. 2d
1299, 1308-09 (S.D. Fla. 2010) (excluding expert damages report where conclusions were not
Needless to say, if the Court refuses to certify a nationwide class on Plaintiffs RICO claims,
Mr. Stones testimony on nationwide Access Fees is both irrelevant and highly prejudicial, and
should be excluded under Daubert and Rules 702 and 403.
7
based on sufficient facts or data and expert provided no reason, explanation, or methodology
for his assertions). As the Eleventh Circuit has warned, Nothing in either Daubert or the
Federal Rules of Evidence requires a district court to admit opinion evidence which is connected
to existing data only by the ipse dixit of the expert. Mich. Millers Mut. Ins. Corp. v. Benfield,
140 F.3d 915, 921 (11th Cir. 1998) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997). Saying total Florida damages equals total Florida Access fees does not make it so.
Second, the assumption that damages for each Florida claim is equivalent to the Florida
Access Fee is erroneous and unreliable. Under the Florida Deceptive and Unfair Trade Practices
Act, for example, damages are measured by the difference in the market value of the product or
service in the condition in which it was delivered and its market value in the condition in which
it should have been delivered according to the contract of the parties. Rollins, Inc. v. Heller,
454 So.2d 580, 585 (Fla. Dist. Ct. App. 1984) (emphases added) (quoting Raye v. Fred Oakley
Motors, Inc., 646 S.W.2d 288, 290 (Tex. App. 1983). Mr. Stone fails to establish that the Access
Fee equals the difference in market value between what the class members received and what
they were allegedly entitled to receive. Indeed, he is quite candid about this gap in his analysis.
During his deposition, he freely admitted that he did not study the self-storage industry, Ta Decl.,
Exh. B (Stone Depo.) at 29:4-8, did not analyze the prevailing market price for insurance offered
by competitors, id. at 40:8-12, and did not know if the price of the TIP insurance might change if
Public Storage did not collect an Access Fee. Id. at 57:12-17. When asked about the market
value of insurance, Mr. Stone bluntly stated, You continue to come back to the market value.
Im not here to give any opinions as to the market value of insurance. Id. at 46:22-24.
Similar problems plague the Florida common law claims. Though Mr. Stone purports to
calculate the total damages for the Florida tenants, Ta Decl., Exh. A (Stone Report) at 2, he
doesnt even mention the Florida common law claims in his analysis and never analyzed the
services the putative class members received (or allegedly did not receive) under their contracts.
Indeed, when asked whether the class members received valid tenant insurance when they paid
for it, Mr. Stone responded I have no opinion on that issue, sir. When asked, That doesnt
play into anything that youve done? He responded, No, sir. Ta Decl., Exh. B (Stone Depo.)
at 65:18-25. Mr. Stone cannot possibly opine about the damages accruing from the common law
claims given the fact he did no analysis of those claims.
IV.
CONCLUSION
Mr. Stones proposed testimony is not helpful to the jury, not a proper subject of expert
testimony, and not grounded in the facts of the case. For the foregoing reasons, Mr. Stones
testimony should be excluded under Daubert and Rules 702 and 403.
Dated March 6, 2015
Respectfully submitted,
s/David P. Ackerman___________________
David P. Ackerman (Florida Bar No. 374350)
dackerman@alslaw.com
Ackerman, Link & Sartory, P.A.
777 South Flagler Drive
Suite 800 East
West Palm Beach, Florida 33401
Tel: (561) 838-4100
Fax: (561) 838-5305
And
Keker & Van Nest LLP
633 Battery Street
San Francisco, CA 94111-1809
Tel: (415) 391-5400
Fax: (415) 397-7188
John W. Keker
jkeker@kvn.com
Steven A. Hirsch
shirsch@kvn.com
David J. Silbert
dsilbert@kvn.com
Quyen Ta
qta@kvn.com
Paven Malhotra
pmalhotra@kvn.com
Counsel for Defendant Public Storage
10
I hereby certify that on March 6, 2015, a true and correct copy of the foregoing was filed
electronically via CM/ECF and a copy served via hand delivery upon counsel for plaintiffs at the
addresses listed below.
s/David P. Ackerman
David P. Ackerman
SERVICE LIST
Colin Bowe and Brian Morgan v. Public Storage
Case No. 14-21559-Civ-Ungaro/Otazo-Reyes
United States District Court, Southern District Of Florida
Scott B. Cosgrove
scosgrove@leoncosgrove.com
James R. Bryan
jbryan@leoncosgrove.com
Andrew B. Boese
aboese@leoncosgrove.com
Alec H. Schultz
aschultz@leoncosgrove.com
Len Cosgrove, LLC
255 Alhambra Cir. Ste. 424
David M. Buckner
dbu@grossmanroth.com
Seth E. Miles
sem@grossmanroth.com
Brett E. von Borke
bvb@grossmanroth.com
Grossman Roth, P.A.
2525 Ponce de Leon, Ste. 1150
11

Case No.: 1:14-cv-21559-UU
COLIN BOWE, et al.,
Plaintiffs,
v.
PUBLIC STORAGE,
Defendant.
/
ORDER ON DEFENDANTS MOTION TO EXCLUDE ROBERT A. STONE
THIS CAUSE is before the Court upon Defendants Motion to Exclude Testimony from
Plaintiffs Damages Expert Robert A. Stone. D.E. 197. The Motion is fully briefed and ripe for
disposition.
THE COURT has considered the Motion and the pertinent portions of the record, and is
otherwise fully advised in the premises.
BACKGROUND
Robert A. Stone is a principal of Kaufman, Rossin & Co., P.A., an independent accounting
firm. D.E. 205-1 at 6. He is a Certified Public Accountant and is licensed to practice in Florida. Id.
He was retained by Plaintiffs to do the following:
Set forth a methodology for allocating payments among class members based on their
pro-rata share of the Access Fee paid by PS Hawaii to Public Storage for each year
from March 1, 2010, to the present;
Determine Plaintiff Brian Morgans damages as one example of the methodology;
Determine the total damages for the Florida tenants;
Testify with respect to Public Storages damages calculation.

1
Id. at 3. Stone was asked to assume that the Access Fees paid to Public Storage by PS Hawaii
represent the damages for the entire National Class. Id.
Stone opines that each class members damages can be calculated by multiplying his or her
insurance payments for a given year by the Access Fee Percentage. Id. at 4. The Access Fee
Percentage is the total access fee paid to Public Storage from PS Insurance Company - Hawaii, Ltd.
(PS Hawaii), divided by the total tenant premium payments for the year. Id. The Access Fee
Percentage for each year from 2010 to 2013 ranges from 85.3% to 73.0%. Id. Based on this formula,
Stone estimated that Morgan suffered $15.56 in damages in 2013 based on his premium payments,
$21.32, multiplied by the Access Fee Percentage, 73.0%. Id. at 5. Stone also used spreadsheets that
Public Storage produced showing the monthly tenant insurance premium payments broken down by
state to calculate the access fees paid by the Florida subclass members. Id. Stone used these
spreadsheets to add the total insurance premiums paid by Florida tenants, and then multiplied this sum
by the Access Fee Percentage to determine the access fees paid by Florida subclass members. Id.
Public Storage moves to exclude Stones opinion under Daubert and Federal Rule of Evidence
702 for the following reasons: (1) Stones opinions on payments to individual class members are
inadmissible because such payments are beyond the scope of the jurys consideration and are
therefore not helpful to the jury; (2) Stones opinions regarding aggregate damages require no
specialized expertise; and (3) Stones opinions are unreliable because they are based on the
assumption that class members damages are equivalent to the access fee paid by PS Hawaii to Public
Storage.
LEGAL STANDARD
Federal Rule of Evidence 702 states: A witness who is qualified as an expert by knowledge,
2
skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the
experts 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 methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.1 The Supreme Court set forth the criteria for the
admissibility of scientific expert testimony under Rule 702 in Daubert by instructing trial judges to
determine at the outset, pursuant to Rule 104(a),2 whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue,
which includes a preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and or whether that reasoning or methodology properly can be applied
to the facts in issue. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 59293 (1993). In
Kumho Tire, the Supreme Court subsequently held this standard to be applicable to all expert
testimony, holding that Dauberts general holdingsetting forth the trial judges general
gatekeeping obligationapplies not only to testimony based on scientific knowledge, but also to
testimony based on technical and other specialized knowledge. Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 141 (1999).
The text of Rule 702 was changed in 2011 as part of the restyling of the Evidence Rules.
This change, however, did not change any result in any ruling on evidence admissibility. Fed.
R. Evid. 702 advisory committees note.
2
Rule 104(a) provides: The court must decide any preliminary question about whether
a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not
bound by evidence rules, except those on privilege. This text is not the same exact text quoted
in Daubert because Rule 104 was changed in 2011 as part of the Evidence Rules restyling. This
change was stylistic only and not intended to change any result in any ruling on evidence
admissibility. Fed. R. Evid. 104 advisory committees note.
3
In Rink v. Cheminova, Inc., the U.S. Court of Appeals for the Eleventh Circuit established a
three-part test to determine whether expert testimony should be admitted under Daubert, explaining
that all of the following elements must be established prior to the presentation of expert testimony
to the jury:
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert
reaches conclusions is sufficiently reliable as determined by the sort
of inquiry mandated in Daubert; and (3) the testimony assists the trier
of fact, through the application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a fact in issue.
400 F.3d 1286, 129192 (11th Cir. 2005). The party seeking to introduce expert testimony bears the
burden of satisfying these criteria by a preponderance of the evidence. Allison v. McGhan Med.
Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).
With respect to the qualification of an expert, the Court of Appeals has recognized that
[w]hile scientific training or education may provide possible means to qualify, experience in a field
may offer another path to expert status. United States v. Frazier, 387 F.3d 1244, 1261 (11th Cir.
2004). To determine whether a witness is qualified to testify as an expert regarding the matters he
intends to address, this Circuits and other Courts of Appeals have held that a witness who possesses
general knowledge of a subject may qualify as an expert despite lacking specialized training or
experience, so long as his testimony would likely assist a trier of fact. See, e.g., Maiz v. Virani, 253
F.3d 641, 665 (11th Cir. 2001) (findingin a civil RICO claim involving fraudulent real estate
transactionsthat a witness with a Ph.D. in economics, extensive experience as a professional
economist, and a substantial background in estimating damages was qualified as an expert witness
in assessing the loss suffered by the plaintiff even though he had no real estate development
experience).
Even if a witness is qualified as an expert regarding a particular issue, the process used by the
witness in forming his expert opinion must be sufficiently reliable under Daubert and its progeny.
See Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1342 (11th Cir. 2003) (stating
that one may be considered an expert but still offer unreliable testimony). The Court of Appeals
in Frazier quoted the advisory committees note to the 2000 amendments of Rule 702, which explains
that [i]f the witness is relying solely or primarily on experience, then the witness must explain how
that experience leads to the conclusion reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the facts. The trial courts gatekeeping
function requires more than simply taking the experts word for it. Frazier, 387 F.3d at 1261
(quoting Fed. R. Evid. 702 advisory committees note (2000 amends.)). Thus, the Frazier court
observed, it remains a basic foundation for admissibility that [p]roposed [expert] testimony must
be supported by appropriate validationi.e., good grounds, based on what is known. Id. (quoting
Daubert, 509 U.S. at 590).
The final requirement for admissibility of expert testimony is that it assist the trier of fact.
Frazier, 387 F.3d at 1244. In other words, expert testimony is admissible if it concerns matters that
are beyond the understanding of the average lay person. Id. (citing United States v. Reno, 765 F.2d
983, 995 (11th Cir. 1985)). Expert testimony is properly excluded when it is not needed to clarify
facts and issues of common understanding which jurors are able to comprehend for themselves.
Hibiscus Assocs. Ltd. v. Bd. of Trs. of Policemen & Firemen Ret. Sys., 50 F.3d 908, 917 (11th Cir.
1995) (citations omitted).
Parties seeking to introduce expert testimony must also comply with Federal Rule of Civil
5
Procedure 26s disclosure requirements. This requires an expert submit a report that contains the
following: (i) a complete statement of all opinions the witness will express and the basis and reasons
for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will
be used to summarize or support them; (iv) the witnesss qualifications, including a list of all
publications authored in the previous 10 years; (v) a list of all other cases in which, during the
previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the
compensation to be paid for the study and testimony in the case. Fed. R. Civ. P. 26(a)(2)(B). If a
party fails to comply with the disclosure requirements of Rule 26(a), the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.
DISCUSSION
A.
Whether Opinions Regarding Payments to Individual Class Members Are

Inadmissible
Public Storage argues that Stones opinions on individual class members damages are
inadmissible because the jury will not award a specific amount of damages to each individual class
member, or decide on a methodology for allocating the aggregate award among class members. That
decision will be left to either a special master or claims administrator after a judgment is entered,
under the Courts supervision. Because Stones methodology for determining individual damages
is not relevant to any issue before the jury, Public Storage contends, his opinions and testimony
regarding this methodology should be excluded.
Plaintiffs argue that Public Storages opinion is inconsistent with their position contesting
class certification. Plaintiffs state that [i]f Public Storage is prepared to concede that individual class
members damages are ascertainable, then Mr. Stones testimony regarding the allocation of aggregate
national class and Florida subclass damages can wait for judgment to be entered against Public
Storage and for the issue of allocation of those damages to be taken up by the Court. D.E. 255 at
10. Plaintiffs also argue that Stones calculations regarding Morgans individual injuries establish
Morgans standing to bring this lawsuit on behalf of the class. Plaintiffs argue that these calculations
show that Morgan suffered damages within the limitations period.
Public Storage replies that Plaintiffs have set forth no basis as to why these opinions go to any
issue properly before the jury and they should therefore be excluded.
Based on Plaintiffs own proposed verdict form, the jury will only determine the total amount
of damages to be awarded to the national class, and the total amount of damages to be awarded to the
Florida sub-class. D.E. 264-2 at 58. Plaintiffs do not set forth a reason as to why the jury needs to
hear Stones opinions on individualized damages calculations. Whether or not individualized
damages are ascertainable and allow for class certification is for the Court to decide, which it has
already done. Further, any issue as to Morgans standing is also for the Court to determine. See
Elend v. Basham, 471 F.3d 1199, 1205-06 (11th Cir. 2006). As Stones methodology to calculate
individual damages, and his calculation of Morgans individual damages do not help the jury
determine a fact in issue, these opinions will be excluded under Rule 702. See Rink v. Cheminova,
Inc., 400 F.3d 1286, 1292 (11th Cir. 2005).
B.
Whether Stones Opinions Require Specialized Expertise
Public Storage argues that Stones tallying of the Access Fee collected by Public Storage
requires no specialized expertise or knowledge. D.E. 197 at 6. Plaintiffs contend that Stones
opinions rely on specialized expertise because he sets forth appropriate equations and identifies from
7
evidence the appropriate inputs for those equations. Specifically, according to Plaintiffs, he sets forth
a methodology to determine how to extract individualized or Florida subclass damage figures from
the total aggregated damages classwide.
As the Court has already excluded Stones opinions regarding how individualized damages
should be calculated, the issue is whether Stones remaining opinion, the total damages for the Florida
subclass, requires specialized expertise. The Court finds that it does not and it should therefore be
excluded.
[E]xpert testimony is admissible if it concerns matters that are beyond the understanding of
the average lay person. Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d
1092, 1111 (11th Cir. 2005) (quoting Frazier, 387 F.3d at 1262-63). Proffered expert testimony
generally will not help the trier of fact when it offers nothing more than what lawyers for the parties
can argue in closing arguments. Id. Stones calculation involves three figures that are undisputed
and were reached either by simple addition and or by viewing a limited set of Public Storage
documents. Stone then performed simple arithmetic, division and multiplication, with these figures
to reach the total damages for the Florida subclass. His opinion regarding the total damages for the
Florida subclass is essentially as follows:
X (Florida subclass access fee)
_________________________
Access fee paid to Public Storage

(from Ernst & Young report)
___________________________
Florida tenants insurance premiums

(sum from Public Storage spreadsheets)
Total insurance premiums

(from Form 10-K)
Stone then solved for X. This is not beyond the understanding of the average lay person and is
therefore not admissible expert testimony. See LSQ Funding Grp., L.C. v. EDS Field Servs., 879 F.
Supp. 2d 1320, 1336 (M.D. Fla. 2012) (finding calculation that involved three undisputed figures and
simple arithmetic was not beyond the understanding of the average lay person); cf. McGinnis v. Am.
Home Mortg. Servicing Inc., No. 5:11-cv-284, 2014 WL 2949216, at *6 n.57 (M.D. Ga. June 30,
2014) (listing cases allowing lay testimony where their conclusions are based on simple arithmetic
calculations).
The cases that Plaintiffs cite for support are not persuasive. They are unpublished cases from
other circuits and do not involve similar facts. In Microsoft Corp. v. Motorola, Inc., the proposed
expert had read and reviewed the invoices for accuracy and discussed potential errors with Microsoft
counsel so that they could be corrected, and had numerous discussions with counsel about specific
elements of cost. 2014 WL 4008822, at *6 (W.D. Wash. Aug. 5, 2013). The court found that
although the experts role was to compile the costs and do the math, he had used accounting
expertise to determine accuracy of calculations. Here, Stone did not take any similar step that would
require his accounting expertise. In Cromeans v. Morgan Keegan & Co., the proposed expert
calculated compound and simple interest on purchased bonds. 2014 WL 5351193, at *1 (W.D. Mo.
Oct. 20, 2014). The court found that the expert had used specialized knowledge by gathering and
organizing data, adjusting for an overpayment and a sale, calculating interest based on different
methods, and preparing a damages schedule. Id. Here, Stone did not have to look to a vast array of
sources to compile the information in an easily understood manner; there were three relevant sets of
documents that informed his opinion, Public Storages Form 10-K, PS Hawaiis Statuory-Basis
Financial Statements prepared by Ernst & Young, and Excel files produced by Public Storage.
Further, the formula for calculating compound interest is much more complicated than the simple
arithmetic Stone performed.
9
Because the Court finds that Stones opinions should be excluded on this basis, the Court does
not address Public Storages argument that Stones opinions are unreliable because they assume that
the access fees are an appropriate measure of damages.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that Defendants Motion, D.E. 197, is GRANTED.
DONE AND ORDERED in Miami, Florida, this 6th day of May, 2015.
_________________________________
URSULA UNGARO
UNITED STATES DISTRICT JUDGE
cc: Counsel of Record
10
ATTACHMENT 9
Appendix E: DSM-IV-TR Criteria for Posttraumatic Stress Disorder - Su...
1 of 2
http://www.ncbi.nlm.nih.gov/books/NBK83241/
NCBI Bookshelf. A service of the National Library of Medicine, National Institutes of Health.
Center for Substance Abuse Treatment. Substance Abuse Treatment: Addressing the Specific Needs of
Women. Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 2009.
(Treatment Improvement Protocol (TIP) Series, No. 51.)
Appendix E: DSM-IV-TR Criteria for Posttraumatic Stress Disorder

A. The person has been exposed to a traumatic event in which both of the following were
present:
(1) The person experienced, witnessed, or was confronted with an event or events
that involved actual or threatened death or serious injury, or a threat to the physical
integrity of self or others.
(2) The persons response involved intense fear, helplessness, or horror. Note: In
children, this may be expressed instead by disorganized or agitated behavior.
B. The traumatic event is persistently reexperienced in one (or more) of the following ways:
(3) Recurrent and intrusive distressing recollections of the event, including images,
thoughts, or perceptions. Note: In young children, repetitive play may occur in which
themes or aspects of the trauma are expressed.
(4) Recurrent distressing dreams of the event. Note: In children, there may be
frightening dreams without recognizable content.
(5) Acting or feeling as if the traumatic event were recurring (includes a sense of
reliving the experience; illusions, hallucinations, and dissociative flashback episodes,
including those that occur on awakening or when intoxicated). Note: In young
children, trauma-specific reenactment may occur.
(6) Intense psychological distress at exposure to internal or external cues that
symbolize or resemble an aspect of the traumatic event.
(7) Physiological reactivity on exposure to internal or external cues that symbolize or
resemble an aspect of the traumatic event.
C. Persistent avoidance of stimuli associated with the trauma and numbing of general
responsiveness (not present before the trauma), as indicated by three (or more) of the
following:
(8) Efforts to avoid thoughts, feelings, or conversations associated with the trauma
(9) Efforts to avoid activities, places, or people that arouse recollections of the
trauma
(10) Inability to recall an important aspect of the trauma
(11) Markedly diminished interest or participation in significant activities
(12) Feeling of detachment or estrangement from others
(13) Restricted range of affect (e.g., unable to have loving feelings)
(14) Sense of a foreshortened future (e.g., does not expect to have a career, marriage,
children, or a normal lifespan)
7/29/2015 5:17 PM
Appendix E: DSM-IV-TR Criteria for Posttraumatic Stress Disorder - Su...
2 of 2
http://www.ncbi.nlm.nih.gov/books/NBK83241/
D. D. Persistent symptoms of increased arousal (not present before the trauma), as indicated
by two (or more) of the following:
(1) Difficulty falling or staying asleep
(2) Irritability or outbursts of anger
(3) Difficulty concentrating
(4) Hypervigilance
(5) Exaggerated startle response
E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F. The disturbance causes clinically significant distress or impairment in social, occupational,
or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more
Specify if:
With Delayed Onset: if onset of symptoms is at least 6 months after the stressor.
Copyright Notice
Bookshelf ID: NBK83241
7/29/2015 5:17 PM
ATTACHMENT 10
ATTACHMENT 11
ATTACHMENT 12
ROBERT CHARLES DUMONT, M.D.
January 13, 2012

3
(WHEREUPON, a certain document was
premarked Dumont Deposition
Exhibit No. 1, for identification,
GINA DELAROSA, individually,
and on behalf of all others
similarly situated,
Plaintiffs,
-vsBOIRON, INC., et al.,
Defendants.
Case No.
) SACV 10-1569-JST
(CWx)
10
as of 01-13-2012)
MR. HARDIN: All right. Whenever you guys
are ready, I am.
THE COURT REPORTER: Okay. Would you like me
to swear in the witness?
MR. HARDIN: Yes, please.
(WHEREUPON, the witness was duly
sworn.)
11
12
The videoconferenced deposition of
THE COURT REPORTER: Thank you.
ROBERT CHARLES DUMONT, M.D., called as a witness
13
ROBERT CHARLES DUMONT, M.D.,
herein for examination, taken pursuant to the
14
called as a witness herein, having been first duly
Federal Rules of Civil Procedure of the United
15
sworn, was examined and testified as follows:
States District Courts pertaining to the taking of
16
depositions, taken before ROSANNE M. NUZZO, a
17
Notary Public within and for the County of Will,
18
Q.
Good afternoon, Doctor. How are you?
State of Illinois, and a Certified Shorthand
19
A.
Good afternoon. Fine.
Reporter of said state, at the offices of Esquire
20
Q.
Can you state your full name for the
Deposition Solutions, 12th Floor, 311 West Monroe
21
Street, Chicago, Illinois, on Friday, January 13,
22
2012, at approximately 11:53 a.m.
23
EXAMINATION
BY MR. HARDIN:
record.
A.
My full name is Robert Charles Dumont.

You want the spelling? The last name
24
is D-u-m-o-n-t.
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Q. Have you had your deposition taken

before?
A. I have.
Q. Approximately how many times?
A. Oh, I'd say approximately six or seven
times.
Q. You generally understand how the
process works, correct?
A. I do.
Q. Are you feeling physically well today?
A. I am.
Q. Is there any reason why you cannot give
complete and accurate testimony today?
A. No, there is not.
Q. You understand your testimony is under
oath?
A. I do.
Q. If there is any question that I ask or
that any other counsel asks you which you do not
understand, please ask that the questioner
rephrase the question, okay?
A. Okay.
Q. If you answer the question without
asking to rephrase, we will assume you understood
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PRESENT (via videoconference):

NEWPORT TRIAL GROUP,
(895 Dove Street, Suite 425,
Newport Beach, California 92660,
949-706-6464), by:
MR. JAMES HARDIN,
jhardin@trialnewport.com,
appeared on behalf of the Plaintiffs
and the Class.
PRESENT:
PATTON BOGGS LLP,
(The Legal Center, One Riverfront Plaza,
Newark, New Jersey 07102,
973-848-5600), by:
MR. DANIEL F. MULVIHILL,
dmulvihill@pattonboggs.com,
appeared on behalf of the Defendants.
REPORTED BY: ROSANNE M. NUZZO, CRR, RPR,

CSR License No. 84-1388.
Toll Free: 800.211.DEPO

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BY MR. HARDIN:
Q. Dr. Dumont, just take a moment to
review it. I just -- the general question is:
Can you confirm that this is the expert report
that you issued in this case, Exhibit 2?
(Short pause.)
BY THE WITNESS:
A. Yes, this is. This is.
BY MR. HARDIN:
Q. You signed that report on page 11 on
November 14 of 2011, correct?
A. Correct.
Q. Attached to your report, you have
Exhibits A, B and C, correct?
A. Correct.
Q. There are no other exhibits that were
intended to be attached to this report, correct?
A. Correct.
Q. Can I ask some general questions about
the report?
Does this expert report, Exhibit 2,
contain all of your opinions in this case?
A. It does.
Q. Does your expert report, Exhibit 2,
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contain all the bases and reasons for your

opinions in this case?
A. It does.
Q. Does your expert report, Exhibit 2,
contain all the data that you considered and
relied upon in your report?
A. It does.
Q. Is there anything in your expert report
that you want to change or revise today, given
facts or circumstances you've learned since it was
prepared?
A. There is not.
Q. Is there anything in your expert
report, Exhibit 2, that you think is incorrect as
you sit here today?
A. No.
Q. Can you describe for me the process
by which you prepared this report, step by step.
A. To my recollection, I first went over
the Plaintiff's case or her deposition or
declaration.
And then, I proceeded to describe, as
I recall -- and I'd have to go through here in
terms of my step by step -- of course, I don't
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recall one year ago what I did step by step -- was

describing what homeopathic medicine is in terms
of the principles and a summation of the evidence
of effectiveness of homeopathic medicines and then
regarding the safety certification and quality
control of the homeopathic medicines.
And then, I did an observation
regarding Ms. De La Rosa's testimony and then
supplied the various exhibits.
Q. What documents did you review to
prepare your expert report?
A. I reviewed a number of meta-analyses
and reviews of homeopathic medicine as well as
single homeo- -- let's see -- homeopathic studies.
I have a slide presentation that I've
given before plus a presentation from a colleague
who has acquired most of the previous studies
done.
I also looked at the FDA website and
pulled information from there as well as the
Homeopathic Pharmacopoeia of the United States and
acquired information from that as well.
Q. Are those all the documents that you
reviewed to prepare this report?
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A. Yes, I believe they are.

Q. The first one -- type of document you
mentioned were analyses and reviews of homeopathic
medicine, is that correct?
A. That's correct.
Q. What analyses or reviews did you look
at?
A. I had actually looked at -- let's see.
I had looked at all of them, to some degree;
some, I looked a little more carefully at and
have recently written a review article on
complementary alternative medicine for a journal
that was published in June 2011, so I had, let's
say, in the previous six months, had gone over
them for that particular article.
I'm not sure exactly what you're
asking. Obviously, I reviewed most all of these
to -- again, to some degree, more or less.
Q. And what are you looking at right now,
what document?
A. I'm looking at the homeopathic studies.
Q. Exhibit B?
A. That's Exhibit B, exactly.
Q. Exhibit B is two pages long, correct?
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cold?
A. One place where medicines have
difficulty having a sustained effect is if they're
continually assaulted by a particular allergen or
problem, and so if they had ongoing allergies and
there was something in the house that might have
had an effect on the effectiveness of Coldcalm.
Q. Okay. So we're still looking at
Exhibit C in your report, which we have identified
as Exhibit 2.
The only research or data that you have
identified in your report or any exhibits that
specifically dealt with homeopathic medicine
addressing influenza is the Vickers & Smith report
in 2006, correct?
A. Correct.
Q. You identified those two that dealt
with seasonal allergic rhinitis by L'dtke and
Taylor?
A. Correct.
Q. You think those may apply as well?
A. Those may apply as well.
Q. But you don't know either way?
A. It depends upon what symptoms they were
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looking at in the study, and I don't -Q. What symptoms were they looking at?
A. I don't recall at this time.
Q. You also identified the two studies
regarding upper respiratory tract infections or
diseases, Bornh'ft and Bellavite. Do you believe
they -- those may apply as well?
A. Correct.
Q. What conditions were those studying?
A. Basically, they were studying common
cold and allergy in one; and, again, common cold
but extending to other upper respiratory problems
such as otitis media or ear infection.
Q. And what were the results of those
studies?
A. Again, as stated in here, they're -this, again, was a review of various studies, so
each of these were reviews of individual studies,
and all those studies were positive.
Q. What were the specific findings in any
of those studies?
MR. MULVIHILL: Objection, overbroad.
BY THE WITNESS:
A. I don't recall at this time.
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BY MR. HARDIN:
Q. How were the studies designed?
A. And that, I don't recall at this time.
Q. Were they randomized controlled human
trials?
MR. MULVIHILL: Objection, overbroad.
BY THE WITNESS:
A. If they were included in a systematic
review, they would have been randomized controlled
trials because that would have been the criteria
to include it in such a meta-analysis.
MR. HARDIN: Do you guys want to take a
two-minute break?
MR. MULVIHILL: Sure.
Is that fine with you?
THE WITNESS: Yeah. That's fine.
(WHEREUPON, a recess was had from
1:13 p.m. until 1:22 p.m.)
MR. HARDIN: Okay. You guys ready to go?
MR. MULVIHILL: Um-hum.
THE WITNESS: Um-hum.
MR. HARDIN: Back on the record.
BY MR. HARDIN:
Q. Doctor, still looking at Exhibit 4,
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focusing on the "Active Ingredients" column, do

you see that?
A. Let's see.
Q. Sorry. Exhibit 4 is the label.
A. Oh, I'm sorry, okay.
Q. I'm sorry. I was -A. Yeah.
Q. Yeah, the product label, the back.
A. Yes. Gotcha. Okay. Yes.
Q. That first active ingredient,
Allium cepa, do you see that?
A. Yes.
Q. Is there any scientific evidence of
which you're aware indicating how Allium cepa may
relieve sneezing and runny nose?
A. The mechanism is not known.
Q. And I'm going to ask the same question
down the line here.
Is there any scientific evidence
indicating how Apis mellifica could relieve nasal
congestion?
Q. Is there any scientific evidence
indicating how Belladonna could relieve colds with
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a sudden onset?
Q. Any scientific evidence indicating how
Eupatorium perfoliatum could relieve sinus pain?
A. Evidence is not known -- or the
mechanism is not known.
indicating how Gelsemium sempervirens could
relieve headaches associated with colds?
indicating how Kali bichromicum could relieve
nasal discharge?
indicating how Nux vomica could relieve sneezing
attacks?
indicating how Phytolacca decandra could relieve
sore throat associated with cold?
indicating how Pulsatilla could relieve colds with
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a loss of taste and smell?

A. And the mechanism is not known.
Q. Do you have any idea how these things
supposedly work to accomplish these purposes?
A. No one has any hypothesis within the
scientific community how they work.
Q. And that includes you?
A. That includes me. I would have the
Nobel prize if I knew.
Q. And you don't, do you?
A. And I don't.
Q. I didn't see that in your resume.
A. No.
Q. Okay, sir. Going back to your expert
report, Exhibit 2, who prepared the initial draft
of that report?
A. Oh, Exhibit 2. I'm sorry. Oh.
I prepared -- I prepared this.
Q. Did you prepare more than one draft and
send it back and forth to counsel, or how did it
work?
A. I prepared this draft, and then I sent
it to counsel. I think they sent it back once,
and that was about it.
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Q. Did counsel make any changes or

corrections?
A. I think the only thing they may have
changed -MR. MULVIHILL: Objection.
I'm going to instruct you not to
answer. You can answer "yes" or "no."
BY MR. HARDIN:
Q. Yeah, go ahead and answer "yes" or
"no."
A. Yes.
Q. Okay. The next question is: What
changes or corrections did counsel make to your
report?
MR. MULVIHILL: Objection. I'm going to
instruct him not to answer.
MR. HARDIN: On what ground?
MR. MULVIHILL: On the ground that drafts are
protected by Rule 26.
BY MR. HARDIN:
Q. Sir, do you have copies of any drafts
of the report that you or counsel created or
revised?
A. I believe only the finished product is
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all I have.
Q. You sent your initial draft to counsel,
correct?
A. I did.
Q. Presumably, they would have that?
MR. MULVIHILL: Objection, calls for
speculation.
BY MR. HARDIN:
Q. You don't know either way?
A. I don't know.
Q. Have you been designated as an expert
in any other case other than this one?
A. No, I haven't.
Q. Have you ever worked for Boiron Inc. or
any of its affiliates?
A. No, I haven't.
Q. Have you ever worked as an outside
consultant or independent contractor for Boiron or
any of its affiliates?
A. No.
Q. So this case is the only time that
you've ever worked and been paid for -- by
Boiron Inc. or its affiliates, correct?
A. Yes, correct.
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that, sure.
Q. Because you credit your patients when
they tell you that, right?
A. Yes.
Q. So you have no basis to doubt
Ms. De La Rosa if she said that's what happened,
right?
A. Sure.
Q. So in this case, haven't you raised
doubts about the adequacy of her description as to
this product not working for her and her children?
A. Only because I wasn't there and
speaking with her. I've only received a paper
testimony.
Q. And, again, you think mothers are
qualified to accurately report that a Coldcalm
product either did or didn't work for their child?
A. On a casual basis, sure. In terms of
doing a study, we would do a protocol. We would
look at the child's cold pattern -- cold duration,
severity, be a validated score, and then use
Coldcalm or some other product and then see how
that might affect that child.
So in terms of a scientific study and
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saying yes or no, of course not. But in terms of

a casual sort of thing, which many physicians use,
"Hmm," whether this is Zantac, "How did that
Zantac work for your reflux?" "It worked pretty
well." "Hmm. Maybe I'll use Zantac again." So
this is how we often -- physicians often use a
product, be it a pharmaceutical product or
whatever, is that this keeps working for me. They
get an impression. They don't take a tally.
They say, "This works for me" or
"This doesn't work for me." If it doesn't work
for most of my patients, I don't think I'm going
to use this as much. Really, it's based on that.
Q. But, of course, you didn't have any
scientific study or analysis done regarding your
patients and how effective it was with them,
correct?
A. Of course not.
Q. Your entire opinion regarding the
effectiveness of Coldcalm is based on these casual
communications by mothers to you regarding the
product, right?
A. Yes.
MR. MULVIHILL: Objection, mischaracterizes
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the testimony and his report.

BY MR. HARDIN:
Q. But you don't know how reliable these
mothers' comments are, do you?
A. Of course not.
Q. So it's really speculative for you to
rely on the statements of mothers regarding how
effective Coldcalm was in reducing the severity or
duration of their children's colds -MR. MULVIHILL: Objection.
BY MR. HARDIN:
Q. (Continuing) -- isn't it?
MR. MULVIHILL: Objection, argumentative.
BY THE WITNESS:
A. Not specifically.
BY MR. HARDIN:
Q. Sir, you're a man of science, aren't
you? You have a medical degree?
A. Yes.
Q. You understand the scientific method,
correct?
A. Yes, I do.
Q. You've practice it in your daily life
as a doctor, correct?
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A. Yes, I do.
Q. As a man of science, you agree that you
cannot reliably say based on some self -- some
offhanded comments by some of your patients that
the Coldcalm product worked for their children
versus others who say it may not have worked?
That's not a sufficient basis for you to opine
that the Coldcalm product can reduce the severity
or duration of a cold, correct?
MR. MULVIHILL: Objection. You're calling
for legal conclusions, you're also being
argumentative, and you're mischaracterizing his
prior testimony.
You can answer the question.
BY THE WITNESS:
A. I can answer the question to the effect
that most medicine is practiced on our observation
and our conversation with patients. Sure, it is
not scientifically based in terms of it's gone
through clinical trials.
But if I can quote the Chair of
Internal Medicine at Mayo Clinic, he said
80 percent of the medicine he does does not meet
the criteria of randomized controlled trials,
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80 percent of conventional medicine. So we often

do things that we do not have that scientific
basis for as clinicians.
BY MR. HARDIN:
Q. And you agree that you have no
scientific basis as a clinician for concluding
that Children's Coldcalm or Coldcalm will -can reduce the severity or duration of the flu?
MR. MULVIHILL: Objection. It
mischaracterizes testimony, it's vague, and lacks
foundation.
BY THE WITNESS:
A. Not Coldcalm in particular.
BY MR. HARDIN:
Q. You agree that you have no scientific
basis for concluding that Coldcalm or Children's
Coldcalm will relieve the symptoms of the flu?
MR. MULVIHILL: Objection. It's vague as to
the term "scientific."
BY THE WITNESS:
A. Not specifically.
BY MR. HARDIN:
Q. Don't you agree, sir, that a handful of
comments that are unsolicited by patients about
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the effectiveness or lack of effectiveness of

Coldcalm is not a reliable basis for you to
conclude that the Coldcalm or Children's Coldcalm
product is effective in relieving symptoms of a
cold?
MR. MULVIHILL: Objection. It
mischaracterizes his testimony. You said -- you
used the term -MR. HARDIN: Don't -- don't give a speaking
objection, counsel -MR. MULVIHILL: I can -MR. HARDIN: -- please.
MR. MULVIHILL: You objected to -MR. HARDIN: Just make your objection.
MR. MULVIHILL: You have mischaracterized the
testimony.
MR. HARDIN: Thank you.
MR. MULVIHILL: Twenty is a lot more than a
handful.
MR. HARDIN: Okay. No, you're right.
I didn't -- I included -- I meant to include
20 plus 5 is a handful, so let me restate it.
MR. MULVIHILL: That's a large handful.
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BY MR. HARDIN:
Q. You agree, sir -- you agree, sir, that
the spontaneous comments, as you described them,
of a certain number of patients of yours regarding
the potential effectiveness of Coldcalm in
relieving the symptoms of a cold is not a reliable
basis for you to conclude that the product is
effective?
MR. MULVIHILL: Objection, vague,
mischaracterizes his testimony.
BY THE WITNESS:
A. Only based on a scientific principle.
This is what's called clinical experience, of
which many physicians rely on, and from that is
why I recommend it.
BY MR. HARDIN:
Q. And the extent of your clinical
experience is what you have described; that to the
best of your recollection, within the last year,
you would estimate approximately twenty mothers
have indicated that Coldcalm may have been
effective in relieving symptoms of a cold, and
about five have said it wasn't, correct?
MR. MULVIHILL: Objection, mischaracterizes
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testimony.
BY THE WITNESS:
A. Based on that vague recollection.
Of course, I did not expect to keep a tally of how
many patients would be -- I should ask in terms of
the outcomes.
BY MR. HARDIN:
Q. And you have no other basis for
concluding in this case that Coldcalm or
Children's Coldcalm is effective in relieving
symptoms of a cold other than that vague
recollection, correct?
MR. MULVIHILL: Objection.
BY THE WITNESS:
A. No.
BY MR. HARDIN:
Q. That's correct?
A. Correct.
Q. We talked about paragraph 15.
How many patients are you aware of
have had their asthma successfully treated by
homeopathic medicines?
A. Let's see. I probably had around
fifteen treated, and I would say one was actually
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ATTACHMENT 13
Larry Compeau, Ph.D., 2/13/2015

Bowe v. Public Storage
IN THE UNITED STATES DISTRICT COURT
MIAMI DIVISION
Case No.: 1:14-CV-21559-UU
______________________________________________________

on behalf of themselves and
all others similarly situated,
Plaintiffs,
vs.
CLASS ACTION

Defendant.
_______________________________/
Videotaped Deposition of LARRY D. COMPEAU, Ph.D.,

held on Friday, February 13, 2015, taken at the
offices of Hogan Block, 247 West Fayette Street, Suite
202, Syracuse, New York, 13202, commencing at 10:05
a.m., before Eric S. Abbott, a Court Reporter and
Notary Public in and for the State of New York.

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certainly, a lot of things you've done and

reviewed -A. Yes.
Q. -- cumulative, but in -- in terms of
what you looked at to prepare this report,
paragraph six has that?
A. Yes.
Q. Your report, in general, which we've
marked as Exhibit-2, contains all the
information and data that you relied on to
generate your opinions, correct?
A. Yes.
Q. Okay. In doing your work in this
case, have you ever visited Public Storage?
A. No.
Q. Have you ever visited Public Storage
in your life?
A. No.
Q. Did you review any copies or
versions of the rental agreement or insurance
addendum at Public Storage?
A. Only those that were provided in the
Nowlis study.
Q. You looked at Nowlis' report and the
documents therein, correct?
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case?
A. I believe I stated that, did I not?
Yeah, Plaintiff's Motion for Class
Certification is the only document I
reviewed.
Q. The only pleading or litigation
document you reviewed was the motion for
class certification?
A. Correct.
Q. You didn't look at Public Storage
opposition?
A. No, I did not.
Q. And are you aware that there is a
complaint in this case, a pleading called a
complaint?
A. I'm familiar with what complaints
are, so I would assume there would be -Q. Right.
A. -- a complaint.
Q. But you didn't look at that as part
-A. No -Q. -- of your work?
A. -- I didn't.
Q. Any reason why not?
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A. Correct.
Q. But, other than that, you didn't
look at any other versions of any rental
agreement or insurance addendum?
A. No, I did not.
Q. You didn't review any declarations or
depositions of class members?
A. No, I did not.
Q. You didn't have any discussions with
class members?
A. No, I did not.
Q. You didn't review any discovery
responses in the case?
A. I'm not sure what discovery responses
are.
Q. Discovery in litigation would be
interrogatory responses req -- responses to
request for admission, things in writing,
like that.
A. No.
Q. Tho -- those weren't provided to you
by counsel?
A. No.
Q. Have you reviewed a copy of the
complaint or the amended complaint in this
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A. I wasn't asked to.

Q. When you were retained by counsel in
this case, did counsel describe for you any
of their allegations in the complaint?
A. Yes.
Q. What did they tell you?
MR. BUCKNER: I'm going to object
because, obviously, on Rule 26, these are
privileged conversations and not discoverable,
except to the extent he relied on something
we told him. You can ask him that. If he
-- if he -MR. HARDIN: That's -- Yeah. Sorry.
And I -- that's kind of what I'm getting at.
So tell me what -- what I can do.
MR. BUCKNER: Well, I -- I think -Well -MR. HARDIN: Go ahead.
MR. BUCKNER: -- I don't want to
tell you what you can do, James, but -MR. HARDIN: I don't want to fi -I'm trying to -MR. BUCKNER: I understand. I
think, under Rule 26, you can ask him if, in
reaching his expert opinion, he assumed any
5 (Pages 14 to 17)

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facts supplied to him by counsel. That's

certainly fine.
MR. HARDIN: Right.
MR. BUCKNER: But in terms of what
our conversations were, I think those are
outside the scope of what Rule 26 allows.
MR. HARDIN: Okay. And that's fair
enough.
BY-MR.HARDIN:
Q. So that is what I'm getting at:
You did not look at the complaint, as you
said -A. Correct.
Q. -- correct? Did you make any
assumptions regarding what was alleged in
this case as part of your work in the case?
A. The -- the assumptions that I made
were based primarily on the review of the
material, in -- particularly, in Nowlis'
expert report where he documents where the -the claims that the plaintiffs are making and
-- and his charge was to perform research to
test that claim. So, from that standpoint,
the claim was laid out fairly clearly in his
report.
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A. I honestly don't know for certain,

but my speculation is just based on logic,
that the complaint would lay out those
elements that the plaintiffs view that the
defendants have engaged in to which they're
making the claim.
Q. You would -- as you say, you don't
know specifically but you would speculate
that the complaint sets forth the plaintiffs'
claims in the case?
A. Sure.
Q. In doing your work and reaching your
opinions in this case, you're not relying
specifically on any statements or assumptions
that you made based on counsel summarizing
their -- their claims in this case?
A. No.
Q. You haven't done your own survey,
have you?
A. No.
Q. Did counsel ever ask you to do a
survey in -- in this case?
A. No.
Q. Did you ever ask counsel if you
could do a survey in this case?
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Q. Okay. So the assumptions you made

about plaintiffs' claims or allegations in
this case you got from Nowlis' report?
A. Correct.
Q. You didn't get that from counsel?
A. We discussed it at times but I don't
recall the specifics of the discussion or
exactly what they said. I know that, when I
was asked to review this research and examine
it, that was -- that's my recollection of
where I found out exactly what was -- what
the charge was.
Q. Did you ever ask for a copy of the
complaint or amended complaint?
A. No, I did not.
Q. Is it your understanding that, in
litigation, the claimant or the plaintiffs'
basic claims or allegations are set forth in
the complaint?
A. Could you repeat that, please?
Q. Sure. What is your understanding of
the function of a complaint in civil
litigation?
MR. BUCKNER: Just object. It seeks
a legal conclusion. Go ahead.
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A. No.
Q. Why -- why haven't you done a
survey?
A. Wasn't my charge, they didn't ask me
to, and my -- my charge was to review this
research.
Q. Other than it not being requested or
not being your charge, is there any other
reason why you didn't do a survey?
A. I never thought about it. They
didn't ask me to do it. We never discussed
it, so I didn't feel I had to.
Q. Did you ever consider doing a survey
in this case?
A. I don't think -- Honestly, not to be
flippant but I don't think a day doesn't go
by when I don't think of doing a survey, so
it's just part of the bloodstream, but I'm
sure I -- I've, you know, ruminated about
doing a -- a survey or what a survey might
do but I never thought about it or in any
serious way.
Q. Just general rumination?
A. Yeah, just -Q. Never discussed it with counsel?
6 (Pages 18 to 21)

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A. No, no specific -Q. They never -A. No specifics.

Q. They never -- Sorry. Sorry. I
thought you were done. Counsel never
discussed doing a survey with you -A. No.
Q. -- as part of your charge?
A. No.
Q. As part of your work in this case,
did you obtain any anecdotal evidence from
customers or class members?
A. No, I did not.
Q. Why not?
A. It wasn't part of the scope of my
work.
Q. Any other reason?
A. Time, takes time to do that.
Q. You finished your report on January
26th, correct?
A. Yes.
Q. When were you engaged?
A. Boy, when was I engaged? I don't
have the date in front of me.
Q. Do you have records that would show
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Q. Okay. Can you give me your best

estimate as to the day of your first
contact, given that the report is dated
January 26th?
MR. BUCKNER: Well, I'm going to
object to the extent that you're asking him
to guess but if he knows.
MR. HARDIN: Right.
A. So it's okay to guess?
Q. Not guess but can you give me an
estimate; was it a few days before the 26th,
was it a week, was it two weeks?
A. I'm going to guess at least two
weeks, yes.
Q. Was it sometime in January?
A. Yes, I believe so.
Q. You're confident it was in January
sometime?
A. No, I'm not.
Q. Could have been before?
A. Late December. Could have been.
I'm not certain.
Q. Okay. You may have put this in
your report, just not coming to mind, do -do you have an approximate amount of time
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that?
A. Not with me.
Q. But at your office you do?
A. Correct. Yes.
Q. Do you have -MR. BUCKNER: Sorry.
MR. HARDIN: That's okay.
Q. Do you have an engagement letter
that was signed?
A. No, I do not.
Q. So with plaintiffs' counsel or the
plaintiffs you never had a written engagement
letter?
A. No.
Q. How were you engaged?
A. Over the phone.
Q. Who contacted you first?
A. David Buckner.
Q. The gentleman here today (indicating)?
A. Yes.
Q. Do you have written records somewhere
in your possession as to the date of your
first contact with plaintiffs' counsel?
A. At my office I do, not here with me
today.
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that you spent on this report?

A. I don't recall putting it in the
report and I don't have a specific number.
I -- I do have it back in my office but I
don't have it with me.
Q. Can you estimate approximately how
long you spent doing the work in this case
and preparing your expert report?
MR. BUCKNER: And, again, I'm going
to object. If you know, that's fine. But
I'm going to object to you asking him to
guess.
A. I don't recall, honestly.
Q. You can't give me any estimate?
A. I could give you a range, maybe.
Q. That's fine.
A. Somewhere between 10 and 20 hours.
Q. Have you -A. But, honestly, that's like -- I
would -- I would say that's -- could be
modified 50 percent, so it's a real rough
estimate.
Q. That's fine.
A. Yeah.
Q. Could -- so it could be between 5
7 (Pages 22 to 25)

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the manipulation, because if the manipulation

isn't strong, you can get non-significant
results, even though, with a stronger
manipulation, the results might be
significant. So when I'm looking at the
presence or the absence of this particular
paragraph, I'm looking at whether, in my
judgment, based on the wording, this -- how
strong the manipulation effect would be.
Now, we don't know because he didn't test
it, so we don't know exactly how strong the
manipulation is but my judgment, based on my
read of that paragraph, is that it could
have been worded in such a way as to
motivate a stronger manipulation.
Q. Under -- understood. But your
judgment that it could be worded in a,
quote, less confusing manner, which, as we
discussed, means that you think it's somewhat
confusing -A. Yes.
Q. -- that judgment is -- is just based
on your own research -- or your own career
and research, correct?
A. Yes.
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Q. Yeah.
A. No.
Q. Do you believe the term "premium"
used by Professor Nowlis is confusing?
A. Could I look at the paragraph -Q. Please do.
A. -- to see the context -Q. Please do.
A. -- in which he put it? (Pause.)
No, I think, in that context, the word
"premium" most consumers would understand.
Q. But, in the context used, you think
"portion" is vague?
A. Yes.
Q. But you're not aware of a single
survey participant that was actually confused
by that, are you?
A. No, I am not.
Q. Professor Nowlis used the term
"reinsurer"; do you believe that that term is
somehow confusing?
A. Again, based on my years of
experience in doing research with consumers,
I would say "reinsurer" is a word that's
unlikely to be in their natural vocabulary.
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Q. It's not based on any specific

research or data for this project?
A. Correct.
Q. And you have no specific information,
research or dat -- data finding that any of
the words used by Professor Nowlis are, in
fact, confusing to anybody?
MR. BUCKNER: Object to form.
A. I do not. Oh.
Q. Do you think the -- the term that
he used, "portion," in the disclosure, is
that confusing?
A. I think it's vague and most -- in
my work, at least, most stimuli where you
use vague communications result in weaker
manipulations.
Q. So the term "portion" is vague to
you?
A. Yes.
Q. But there's no data that you have to
support that, is there?
A. Specific to this research, no.
Q. To any research.
A. Give me a second to think. Specific
about the word "portion"?
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Q. You -A. So I would find it confusing to the

extent that I doubt they would know the
technical definition of what a reinsurer is.
Q. Do you know what a reinsurer is?
A. I do.
Q. What is it?
A. It's a company that takes the risk
from a -- from another company that collects
the premiums and offers the insurance.
Q. Do you have any scientific basis for
concluding that consumers or participants in
this survey do not understand that term?
A. Just my years of experience with
presenting these kinds of phrases and words
to consumers.
Q. But -- but your personal -A. But not specific to the word
"reinsurer."
Q. Your personal experience, you agree,
is not a scientific basis, correct?
A. Well -MR. BUCKNER: Object to form.
A. Well, I think it's -- you know, it's
12 (Pages 42 to 45)

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building a pile of rocks, and when you do

research for 30 years and you continually
present stimuli to consumers and you study
them so closely and so intently, but
specifically, when you do research that
actually asks consumers to interpret specific
words, you do get kind of a feel and a -and a -- a judgment for the average consumer
and -- and what they may or may not
understand and I'm just relying on that
experience in this judgment.
Q. I -- I understand that, but you're
not saying that your feel and judgment for
the average consumer constitutes a scientific
basis, are you?
A. Scientific in -- in terms of
empirically tested?
Q. Yes.
A. No.
Q. You didn't empirically test this
disclosure or any of the terms within this
disclosure to determine whether any single
person was confused, correct?
A. Correct.
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Q. Are you aware of any survey

participant or consumer that was actually
confused by the term "benefit"?
A. No.
Q. There's no empirical evidence that
that term was in any way confusing, right?
A. I don't know of any empirical
evidence testing that.
Q. Do you believe that the term
"corporate affiliate" used in Professor
Nowlis' disclosure was in any way vague or
confusing?
A. Vague, yes.
Q. That's just based on your personal
judgment?
Misstates testimony.
A. Based on my years of experience,
yes.
Q. There's no empirical basis for that,
is there?
A. I do not know of any.
Q. You're not aware of a single survey
participant or consumer that was confused by
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Q. Your opinion that this disclosure or

the terms within it could be somewhat
confusing has no empirical basis?
A. Other than what I've already stated,
no.
Q. You understand what reinsurer means,
correct?
A. Yes.
Q. Have you asked any person other than
yourself what their understanding is of that
term?
A. No.
Q. You just think that they wouldn't
understand it?
A. Well -- Well, and, again, anecdotal
evidence; I didn't understand it until I read
this and I looked it up as to what it was.
I had never heard of the word before.
Q. Which word?
A. Reinsurer.
Q. Do you believe that the term
"benefit" used in Professor Nowlis' disclosure
is in any way confusing?
A. Again, I think it's vague.
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that term, right?

A. As -- as far as the survey
participants, there's no way for me to know
because it was never tested, and that, of
course, is one of my criticisms is that this
should have been tested to see if they
understood and -- these terms and -- and
just how vague they were.
Q. Understood. But, based on the
survey, you're not aware of a single survey
participant that was confused by the term
"corporate affiliate," correct?
MR. BUCKNER: Objection. Asked and
answered.
A. Again, it was never tested, so I
can't be aware of something that wasn't
tested.
Q. And you haven't done any empirical
-- pirical testing of that term yourself?
A. I did not have access to the survey
participants.
Q. And, in all of your research,
writing, presentations, et cetera, you're not
aware of any research, findings or articles
indicating that any of these terms are vague
13 (Pages 46 to 49)

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or confusing to consumers, correct?

A. I can't think of any as I sit here.
Q. What does "corporate affiliate" mean?
A. My understanding is that a corporate
affiliate is a separate firm that has some
financial legal ties to another firm. It
might be a wholly-owned subsidiary, it might
be interlocking directorate, it might take
many different forms.
Q. Did you have to look that up as
part of your work in this case or did you
already know that, what that meant?
A. That, I knew.
Q. But you think that survey
participants wouldn't understand that term?
Misstates testimony.
A. Right. Again, I don't know. It
wasn't tested, so I can't speculate as to
whether they were or not.
Q. Can you say what percentage of the
surv -- survey participants were confused by
any of the terms we just mentioned?
A. Again, it wasn't tested, so I cannot
answer that question.
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Storage will benefit from the sale of the

insurance?
A. Well, first of all, I can only speak
to the survey and, again, it was never
tested in the survey as to whether or not
the subjects read that disclosure
specifically. So I don't know.
Q. Based on your personal judgment, do
you think that the overall disclosure used by
Professor Nowlis in his survey communicates
to survey participants that Public Storage
will benefit from the sale of insurance?
A. Again, that's an empirical question.
I would want to test that.
Q. You don't know right now?
A. No.
Q. You have no opinion on that?
A. No.
Q. Is there any evidence in the survey
done by Professor Nowlis that any of the
participants were, in fact, confused by this
disclosure or the terms within this
disclosure?
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Q. Is there a term other than

"corporate affiliate" that should have been
used?
A. I -- I can't speculate on that
because I don't know the exact relationship
that was trying to be represented here.
What I do know though, and the research
bears this out, and that is more specific
wording and disclosures are more powerful
than vague wordings.
Q. From Professor Nowlis' disclosure in
his survey, do you think it's clear to
survey participants, taking it all in as a
whole, the entire disclosure, that Public
Storage will or may benefit from the sale of
insurance?
A. I hate to ask you this, but could
you repeat that again?
Q. Sure. Based on the full disclosure
that was made in professor Nowlis' survey
which includes the terms we discussed -A. Yes.
Q. -- do you think the full disclosure
notifies survey participants that Public
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A. That wasn't tested, so, again, I

have no empirical evidence to make a judgment
on that.
Q. But, based on the survey results and
the data supporting the survey results, you
see no evidence of actual confusion in that
data as it stands, right?
A. Again, you can't make that conclusion
based on what was reported. There would
have to have been other tests performed to
draw that conclusion.
Q. The end of paragraph eight, which we
looked at -A. Yes.
Q. -- the -- the second sentence,
you're -- you're basically saying, "A less
confusing disclosure," and then the very end
it says, "Would likely have a significant
impact on consumer behavior"; do you see
that?
A. Yes.
Q. That conclusion that it would likely
have a significant impact on consumer
behavior, that's your personal judgment only,
correct?
14 (Pages 50 to 53)

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A. Well, what I'm saying is that an
empirical test of it could show that, and,
in the past, the research has consistently
shown that, you know, less vague, less
confusing has greater impact than more vague,
more confusing.
Q. When you say "significant impact,"
what did you mean?
A. Meaning that, in that statistical
sense, it would have achieved statistical
significance.
Q. You agree that, in Professor Nowlis'
survey, the difference between the test group
and the control group was non-statistically
significant?
A. I am aware of that.
Q. You agree with that?
A. Agree with what?
Q. That it was non-statistically
significant?
A. I agree that he did not find
statistically significant results, yes.
Q. Do you dispute that they are -- do
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A. I have no idea.
Q. That would be speculation?
A. Yes, you have to test it.
Q. You couldn't quantify it?
A. No, I couldn't.
Q. Looking at paragraph nine again,
going to the bottom of the this page, page
3, the second to last sentence in paragraph
nine you say, "A stronger manipulation would
likely generate a stronger effect, impacting
consumer behavior"; do you see that?
A. Yes, I do.
Q. Again, you have no empirical basis
for that, that's just based on your personal
opinion?
A. Again, it's not my person opinion,
it's based on years and years of research
where thousands of researchers have performed
manipulations with wordings, and less vague,
less confusing, more information, always gets
a stronger manipulation and effect.
Q. When you say, "Would likely generate
a stronger effect," how much stronger?
A. I'd have to test it.
Q. Can you quantify it right now?
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you -- are you claiming that they -- his

results are statistically significant?
A. No, I am not.
Q. But by this statement at the end of
paragraph eight, when you say, "Would likely
have a significant impact on consumer
behavior," you're saying that it would likely
be statistically significant?
A. My judgment is that, had the
manipulation been stronger, less vague, more
specific, and drawn attention to through some
of the other techniques I talked about where
the subjects would have noticed it, read it
and understood it, it's -- yes, that's my
judgment, that it would have had an -- a
significant impact.
Q. And you reached that judgment without
any empirical basis whatsoever?
A. That's correct.
Q. Just your personal experience and
judgment?
A. Years and years of research to back
it up.
Q. Okay. How statistically significant
would this difference have been?
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A. No, I can't.
Q. That would be speculation?
A. Correct.
Q. This statement that we just read
that a stronger manipulation would likely
generate a stronger effect, impacting consumer
behavior, you -- you don't have empirical
evidence for that though?
A. No -MR. BUCKNER: Object to form.
A. No. But it's based on pure logic;
if you have a stronger manipulation, you're
going to have a stronger effect, de facto.
Q. Well, why don't you think consumers
would understand the phrase "portion of the
premiums"?
A. I don't think I ever said they
wouldn't understand it; what I said is that
it's vague and that it could be much more
specific. For example -Q. When you say vague -- sorry, so you
say "vague -MR. BUCKNER: Well, let -Q. -- and confusing --"
MR. BUCKNER: James, let -- let him
15 (Pages 54 to 57)
ATTACHMENT 14
ADRIAN JAFFER
March 4, 2011
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FOR THE COUNTY OF SAN DIEGO

FLETCHER GIBSON, individually,
and on behalf of all others
similarly situated,
Plaintiff,
vs.
NO. 37-2010-00086916CU-MT-CTL
HOMEDICS, INC., a Michigan

Corporation; and Does 1-20,
Inclusive,
Defendants.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
DEPOSITION OF
ADRIAN M. JAFFER, M.D.
March 4, 2011
10:00 a.m.
9850 Genesee Avenue
Suite 810
La Jolla, California
Diane M. Stockton, CSR No. 11085
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APPEARANCES OF COUNSEL
For the Plaintiff:
NEWPORT TRIAL GROUP
JAMES B. HARDIN, ESQ.
610 Newport Center Drive, Suite 700
949.706.6464
For the Defendants:
MORRIS POLICH & PURDY, LLP
DAVID J. VENDLER, ESQ.
1055 West Seventh Street, Twenty Fourth Floor
Los Angeles, California 90017
213.417.5100
dvendler@mpplaw.com
INDEX OF EXAMINATION
WITNESS: ADRIAN M. JAFFER, M.D.
EXAMINATION
PAGE
By Mr. Hardin
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By Mr. Vendler
209
By Mr. Hardin
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INDEX OF EXHIBITS
EXHIBIT
DESCRIPTION
1 Declaration of Adrian M. Jaffer, M.D.
signed July 26, 2010
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62
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2 Printout from website with Homedics back brace 123

magnetic therapy system
3 Printout of an Internet picture indicating
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it's a Homedics product called Magna-Dots
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4 Witness' file
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5 Color copy entitled "Homedics Therapy Hot and

Cold Therapy Back Support with the Power of
Magnets"
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6 Copy of box of back brace at issue
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Toll Free: 800.755.1880

Facsimile: 714.708.0402
Suite 400
535 Anton Boulevard
ADRIAN JAFFER
March 4, 2011
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MR. VENDLER: But go ahead.
effects are very real. Up to 35 percent of patients in
THE WITNESS: -- is where this substance or
many studies benefit from placebos."

A. Correct.
magnet, or whatever, would be considered should be
ineffective but, in effect, has a real clinical benefit
Q. So based on that understanding, you agree that
for a substantial number of patients. That's the placebo
someone given pieces of rock could have a placebo effect
effect.
that could benefit up to 35 percent of patients?
BY MR. HARDIN:
Q. And in your declaration you state, "This is
because the medical literature is conclusive that if a
A. Pieces of rock?
Q. Not to ingest. We're talking about a case here
involving magnets.
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patient believes in the treatment he or she is receiving
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A. I know.
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for pain the treatment can have a significant beneficial
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Q. Right.
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impact even if the treatment itself has no therapeutic
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value. That is what is known in the medical literature
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as, quote, "placebo effect," end quote. Right? That's
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paragraph 8 of your declaration.
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A. Yep.
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Q. You agree with that definition of "placebo
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effect" in your declaration?
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A. Yes. You went on the ingestion prescriptions. I

didn't do that.
Q. If someone were told a product that instead of
having magnets in there had quartz or granite rocks -A. Yes.
Q. -- that could generate 35 percent placebo effect;
right?
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A. Yes, theoretically, absolutely.
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gathered today. I mean, I have done subsequent reading.
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Q. Under your understanding of placebo effect?
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This was an initial conversation. It was done reasonably
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A. Yes.
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rapidly given what I was thinking at that time. I've
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spent hours, I told you this, reading subsequently,
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snake oil, you believe that that could serve as a placebo
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particularly in the placebo effect, finding that the
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effect to your understanding, as well?
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science is gradually understanding that while we would
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A. I've modified it since then a little bit, as you
Q. And if it had snake oil in there in capsules of
A. It might, yes.
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Q. And if it had a crucifix in there, you agree that
have anticipated it shouldn't have an effect, it in fact
does have a real effect for people, so it relieves their
pain, for example, because that's that we're talking about
A. Absolutely.
today.
Q. What about if it just had -A. Can I --
that could serve as a placebo, as well?
Q. Well, based on your definition of "placebo
effect" in your declaration that you submitted in this
case, you agree that any substance or thing can serve as a
red. You agree that this cotton material in a back brace
placebo and have a placebo effect?
if placed as part of the back brace could have a placebo
effect, as well?
A. I can't answer that, "any substance." That's too
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broad. I mean, I think that in this instance any
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prescription, any compound, generally it has to be safe.
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Okay? It can't just be any compound. I mean --
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Q. Any compound?
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A. It has to be a totally safe product, generally in
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Q. -- just had cotton material that was the color
A. It could have an effect on -- well, you want to

use the placebo effect fine, yes.
Q. It could be up to 35, 40 percent?
A. Do you mean by the placebo effect? Now I'm
asking you.
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a pill, or in this case you're talking about slabs of
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Q. I'm going by your definition, sir.
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metal, some of which are magnetized. So it's a magnetic
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A. That's fine.
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force field, which is generally known to be harmless, but
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Q. You sent me a declaration in this case.
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although they are, as you know, if you've read it, certain
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A. No, no, that's fine.
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people can't use magnets.
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Q. So I'm going by your declaration.

A. Yes, they could.
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Q. Sure.
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A. So I think that if you -- fine. Any compound
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Q. If there was a back brace that had dried cow dung
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that's totally safe, sugar, whatever else you would choose
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in there, you agree that that cow dung could have a
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to put in the pill, can be used as a placebo, to answer
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placebo effect for pain relief of up to 35 or 40 percent?
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the question.
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Q. In your declaration you went on to say, "Placebo
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A. Cow -- I suppose if it was solid and didn't smell

and look like a magnet it could have an effect.
Toll Free: 800.755.1880

Facsimile: 714.708.0402
Suite 400
535 Anton Boulevard
ADRIAN JAFFER
March 4, 2011
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Q. You have no reason to think it wouldn't; right?
be careful about metaanalysis in these things that you're
A. I have no reason to -- that's a particularly
busy pushing placebos here. We're pushing pain relief and
real effect, and there's certainly enough data, both in
mice and others, to suggest that magnets may have a real
strange thing, but I suppose it could, yes, sure.

Q. And do you know today whether having magnets with
the Homedics back brace would lead to a more significant
effect, and that's the issue, not whether I said from a
placebo effect in terms of percentage, like 35 percent,
practicing point of view, which I did in that declaration.
than any of the other things that I just mentioned?
If I give cow dung and 30 percent of people get
A. Yes, in a few studies it seems clearly that it
significant pain relief, is that a good thing? It is a
good thing. If I give people with magnets and 45 percent
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does.
Q. Well, but I said any of the other potential
placebos I just mentioned.
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or 50 percent get relief, it's a good thing. If you say
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to me statistically that's not different from a placebo,
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A. And I said yes, it seems like it does.
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that's true. If you say to me that means a magnet is a
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Q. You've read studies in which they've studied
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placebo, that is not correct. It is not established
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whatsoever that a magnet equals a placebo.
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quartz, granite, red material?
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A. What?
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Q. I understand.
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Q. Have you read a study where they studied the
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A. You're talking statistics.
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placebo effect of dried cow dung in a back brace and
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Q. Today can you say one way or another whether a
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compared it to the placebo effect of magnets?
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Homedics hot-cold back brace with magnets in it provides
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A. No.
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anymore pain relief than the same identical back brace
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Q. Today can you say whether any placebo effect that
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that's the subject of this case except instead of having

magnets it has dried cow dung in them?
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comes from the Homedic magnetic back braces would be any
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greater than if you used other placebo material that I
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just described?
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hot and the cold?
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BY MR. HARDIN:
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MR. VENDLER: I'm going to assume that it's

argumentative that you're assuming that the magnets are a
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MR. VENDLER: Do you want him to factor in the
Q. The identical back brace except for instead of
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placebo material. I don't think that's what he's
magnets it has dried cow dung. Which one provides more
testified to.
pain relief in your understanding?
MR. HARDIN: That's a leading statement, as well.
MR. VENDLER: No. I --
MR. HARDIN: Counsel, I really don't know where
A. No one's ever studied that. How can I possibly

answer that?
Q. Do you have an opinion as to --
you're going with this because it's in his own
A. I don't have an opinion of something like that.
declaration. He has a whole paragraph on the placebo
Q. You don't know whether the Homedics back brace
effect.
substituting cow dung in for magnets would provide more
pain relief or not?
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MR. VENDLER: I understand.

MR. HARDIN: This is a case about Homedics' back
brace. Why is he talking about it in his declaration?
THE WITNESS: I'm fine with this.
BY MR. HARDIN:
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A. I do not know.
Q. And the same is true: You don't know whether the
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Homedics back brace that's the subject of this case and
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your opinions, that instead of having magnets in there it
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Q. Okay.
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had granite in there? You don't know which would provide
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A. You just proceed.
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more pain relief, do you?
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But what I would say to you is that there is data
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A. I do not.
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that I've given you, studies that you need to read, that
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suggest the magnet has, in fact, a real effect in reducing
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pain. Fibromyalgia is probably the most prevalent serious
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functional pain condition, and there are studies, one from
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Virginia and another one being completed at some other
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place there, which suggests it has, in fact, a real effect
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that correct?
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and that further studies are warranted, and I think that's
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A. Yes.
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the official position actually of the National -- whatever
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Q. Which ones?
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they call them -- alternative branch because you have to
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A. Internal medicine, rheumatology and allergy and
Q. Or crystals, glass crystals; you don't know, do

you?
A. I do not know. There is no data from which I can
formulate an opinion.
Q. You're board certified in several specialties; is
Toll Free: 800.755.1880

Facsimile: 714.708.0402
Suite 400
535 Anton Boulevard
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What is the purpose of taking depositions?

What is the purpose of taking depositions?

What are some of the challenges of deposing expert witnesses?

What are some of the challenges of deposing expert witnesses?

Mastering The

November 13, 2015

Opening remarks and program overview

Fundamentals of Taking Depositions

How to Take an Effective Deposition for Use at Trial

Deposing Expert Witnesses: Promoting Expertise and Limiting Exposure

How Deposition Testimony Plays Out at Trial

Meet the Faculty

Fundamentals of Taking Depositions

Katherine V.A. Smith

What Is the Purpose of a Deposition?

Depositions are the most potent discovery tool

What Is the Purpose of a Deposition?

What Is the Purpose of a Deposition?

Non-party depo (witness available at trial)

May be used only to contradict or impeach

Non-party depo (witness unavailable)

What Is the Purpose of a Deposition?

Other types of depositions:

PREPARING FOR A DEPOSITION

Decide Whom to Depose and When

FRCP 30(a)(2)(A): 10 depositions per side

Consider Time Limits

How to Prepare for a Deposition

Start with a theory of the case and themes:

What are your themes?

The essence or core of your case (This is a case about ...)

How to Prepare for a Deposition

How to Prepare for a Deposition

How to Prepare for a Deposition

How to Prepare for a Deposition

How to Prepare for a Deposition

Critical for later use of testimony

Understand oath same oath as administered in court

Information-Gathering Questioning (aka The

When and why should I follow this

What are you doing in the open phase?

Learning new facts (could be good or bad facts

Taking notes of things you want to know more about

Example of Open Phase

What Are You Doing in the Clarification Phase?

Continue to ask open questions, but ask them topic by topic

Your goal is to close out each topic

Example of Clarification Phase

Example of Clarification Phase

Close off each topic

Example of Closing Off

Take testimony that a witness has provided and

Q. Let me make sure I understand your testimony.

Critical for summary judgment motions, where you

Example of Gaining Admissions

How to Deal with the Forgetful Witness

Do you have any reason to doubt that this is an email

Step 4: Explore the Exhibit