In a trademark infringement case in Florida, the plaintiff’s expert (an economist) was to testify as to corrective advertising damages, but the defendant made a motion that she be excluded. The court disagreed, allowing the expert to testify “provided Plaintiff proffers the necessary foundational testimony at trial to support [the expert’s] opinion regarding the amount of damages owed.” The defendant had an expert from an intellectual property asset consulting firm specializing in trademarks (who was also a CVA) who was to rebut the economist’s testimony and opine that corrective advertising was not required. The plaintiff argued that the expert was not qualified to testify because, “during his deposition [he] was unable to name the types of harm courts have found to justify corrective advertising.” But the court found him qualified to testify because the economist’s testimony opened the door for him to provide alternative damages calculations.

The case is Therapeutics MD, Inc. v. Evofem Biosciences, Inc., 2022 U.S. Dist. LEXIS 58524, and a case analysis and full opinion are available on the BVLaw platform.