Vonrosenberg v. Lawrence

413 F.Supp.3d 437

The Right Reverend Charles G. VONROSENBERG, et al., Plaintiffs,

The Episcopal Church, Plaintiff in Intervention

v.The Right Reverend Mark J. LAWRENCE, et al., Defendants.

Civil Action No. 2:13-587-RMG

United States District Court, D. South Carolina, Charleston Division.

Signed September 19, 2019

Jason Severin Smith, Thomas S. Tisdale, Jr., Hellman Yates and Tisdale, Robert Walker Humphrey, II, Willoughby and Hoefer, Charleston, SC, Matthew Dempsey McGill, Pro Hac Vice, Gibson Dunn and Crutcher, Washington, DC, for Plaintiffs.

Adam Michael Chud, Pro Hac Vice, David Booth Beers, Pro Hac Vice, Goodwin Procter LLP, Washington, DC, Allan Riley Holmes, Cheryl H. Ledbetter, Timothy O'Neill Lewis, Gibbs and Holmes, Robert Walker Humphrey, II, Willoughby and Hoefer, Charleston, SC, Charles Alan Runyan, C. Alan Runyan, Beaufort, SC, Mary Elaine Kostel, Pro Hac Vice, Chancellor to the Presiding Bishop of The Episcopal Church, Alexandria, VA, for Plaintiff in Intervention.

Andrew Spencer Platte, Andrew S. Platte, Charles Alan Runyan, C. Alan Runyan, James Andrew Yoho, Howell Gibson and Hughes, Beaufort, SC, C. Mitchell Brown, Nelson Mullins Riley and Scarborough, John Edward Cuttino, Gallivan White and Boyd, Henry P. Wall, Bruner Powell Wall and Mullins LLC, Columbia, SC, Charles Hiram Williams, II, Williams and Williams, Robert R. Horger, Horger Barnwell and Reid, Orangeburg, SC, David Spence Cox, Barnwell Whaley Patterson and Helms LLC, Ivon Keith McCarty, McCarty Law Firm, William A. Scott, Pedersen and Scott, Mark Victor Evans, Mark V. Evans Law Office, David B. Marvel, Marvel Et Al LLC, Andrew Marvin Connor, G. Mark Phillips, Nelson Mullins Riley and Scarborough, William Foster Gaillard, Womble Bond Dickinson US LLP, Catherine Robinson Graham, Paul E. Sperry, Copeland Stair Kingma and Lovell LLP, Allan Poe Sloan, III, Joseph C. Wilson, IV, Pierce Herns Sloan and McLeod, Ryan Earhart, Earhart Overstreet LLC, Charleston, SC, Henrietta U. Golding, Burr and Forman LLP, Susan P. MacDonald, Nelson Mullins Riley and Scarborough, Robert S. Shelton, Bellamy Rutenburg Copeland Epps Gravely and Bowers, Karolan Furr Ohanesian, Ohanesian and Ohanesian, Myrtle Beach, SC, Lance A. Lawson, Pro Hac Vice, Burr and Forman LLP, Charlotte, NC, C. Pierce Campbell, Turner Padget Graham and Laney, Lawrence Bradley Orr, Orr Elmore and Ervin, Saunders M. Bridges, Jr., Aiken Bridges, Florence, SC, Harry Roberson Easterling, Jr., Easterling Law Firm, Bennettsville, SC, John Furman Wall, III, Mount Pleasant, SC, William A. Bryan, Bryan and Haar, Surfside Beach, SC, Peter Brandt Shelbourne, Summerville, SC, Harry A. Oxner, Oxner and Stacy, Georgetown, SC, for Defendants.

ORDER AND OPINION

Richard Mark Gergel, United States District Court Judge This matter is before the Court on Plaintiff-in-Intervention The Episcopal Church's Motion to Exclude the Genericness Expert Report of Hal Poret (Dkt. No. 580), Defendants The Right Reverend Mark J. Lawrence, et al. 's Motion to Exclude Walter Edgar (Dkt. No. 585), Defendants The Right Reverend Mark J. Lawrence, et al. 's Motion to Exclude Mark Keegan (Dkt. No. 597) and Defendants The Right Reverend Mark J. Lawrence, et al. 's Motion to Exclude Robert L. Klein (Dkt. No. 598).¹

I. Background

This case arises out of a schism in 2012 in the Historic Diocese, originally known as the "Protestant Episcopal Church in the State of South Carolina," in which certain members and parishes sought to dissociate from The Episcopal Church, a nationwide hierarchical church. The parties have litigated property issues relating to the schism in the state courts of South Carolina, culminating in a 2017 decision in the South Carolina Supreme Court, and have raised in this action issues surrounding the use of certain federal and state law marks in contest between the national church and its affiliates and the disassociating diocese and its affiliates. As in separate Orders, it is important to identify the major parties in this dispute. The parties are as follows:

1. Plaintiff The Episcopal Church of the United States (hereafter "TEC") is the national church and an Intervenor Plaintiff in this action;

2. The Protestant Episcopal Church in the State of South Carolina (hereafter the "Historic Diocese"), which was formed as early as 1785 and has long affiliated with TEC;

3. Plaintiff The Episcopal Church in South Carolina (hereafter "TECSC"), which was headed initially by Plaintiff Bishop Charles G. vonRosenberg and subsequently by Plaintiff Provisional Bishop Gladstone B. Adams, III and is affiliated with TEC;

4. Defendant The Diocese of South Carolina (hereafter "Disassociated Diocese"), headed by Defendant Right Reverend Mark Lawrence and was formed following the schism in 2012 to disassociate from TEC;

5. The Defendant parishes associated with the Disassociated Diocese (hereafter "Disassociated Parishes").

In conjunction with the summary judgment briefing, the Parties have filed four Daubert motions to exclude or limit the testimony of the opposing Parties' experts. (Dkt. Nos. 580, 585, 586, 597, 598.) Each one has been fully briefed, with opposing Parties responding to the motion and the moving Party filing a reply. (Dkt. Nos. 617, 623, 639, 640, 648.)

II. Legal Standard

Under Rules 104(a) and 702 of the Federal Rules of Evidence, "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Thus, even if a witness is "qualified as an expert by knowledge, skill, experience, training or education," the trial court must ensure that (1) "the testimony is the product of reliable principles and methods," that (2) "the expert has reliably applied the principles and methods to the facts of the case," and (3) that the "testimony is based on sufficient facts or data." Fed. R. Evid. 702(b) – (d). "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid," Daubert , 509 U.S. at 592 – 93, 113 S.Ct. 2786, and whether the expert has "faithfully appl[ied] the methodology to facts," Roche v. Lincoln Prop. Co. , 175 F. App'x 597, 602 (4th Cir. 2006).

Factors to be considered include "whether a theory or technique ... can be (and has been) tested," "whether the theory or technique has been subjected to peer review and publication," the "known or potential rate of error," the "existence and maintenance of standards controlling the technique's operation," and whether the theory or technique has garnered "general acceptance." Daubert , 509 U.S. at 593 – 94, 113 S.Ct. 2786. However, these factors are neither definitive nor exhaustive, United States v. Fultz , 591 F. App'x 226, 227 (4th Cir. 2015), cert. denied , ––– U.S. ––––, 135 S. Ct. 2370, 192 L.Ed.2d 159 (2015), and "merely illustrate[ ] the types of factors that will bear on the inquiry." United States v. Hassan , 742 F.3d 104, 130 (4th Cir. 2014). This is especially true as the Daubert standard applies to non-scientific expert testimony as well. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

The Court is mindful that the Daubert inquiry involves "two guiding, and sometimes competing, principles." Westberry v. Gislaved Gummi AB , 178 F.3d 257, 261 (4th Cir. 1999). "On the one hand, ... Rule 702 was intended to liberalize the introduction of relevant expert evidence," id. , and "the trial court's role as a gatekeeper is not intended to serve as a replacement for the adversary system." United States v. Stanley , 533 Fed. Appx. 325, 327 (4th Cir. 2013) citing Fed. R. Evid. 702 advisory committee's note. On the other hand, "[b]ecause expert witnesses have the potential to be both powerful and quite misleading,’ it is crucial that the district court conduct a careful analysis into the reliability of the expert's proposed opinion." United States v. Fultz , 591 F. App'x 226, 227 (4th Cir. 2015) quoting Cooper v. Smith & Nephew, Inc. , 259 F.3d 194, 199 (4th Cir. 2001).

III. Discussion

A. The Episcopal Church's Motion to Exclude Hal Poret (Dkt. No. 580)

Plaintiffs move to exclude the report produced by Defendants' expert, Hal Poret, which reported on a "Teflon" survey² conducted by Poret to assess the genericness of TEC's mark "The Episcopal Church." (Dkt. Nos. 580; 586.) As an overview of Poret's survey, Poret asked respondents to choose whether certain names constituted a "trademark name," which was defined as being used by "one organization, or by branches of that organization," or a "category name" which was defined as "a name that identifies a category that can include various organizations that are not affiliated with each other" and "can be used by more than one organization to identify what type of organization they are." (Dkt. No. 586-1 at 8) (emphasis added). The survey gave, as an example, "Chase Bank" and "The Democratic National Committee" as "trademark name[s]," and "Savings Bank" and "The Liberal Left" as a "category name[s]." (Id. at 9 – 10.) After asking whether the respondents understood the difference, they were then asked a test question juxtaposing "The American Medical Association," intended to be a "trademark name," versus "The Medical Profession," intended to be a "category name." (Id. at 10-11.) Respondents who answered correctly were then asked a series of questions regarding whether certain names in the "area of religious organizations or institutions" were "trademark names" or "category names." (Id. at 11.) Six terms in total were shown. (Id. at 12 – 13.) Relevantly, the survey asked whether "The Episcopal Church" was a "trademark name" or a "category name" and, according to Poret's survey, 43.7% of respondents stated that "The Episcopal Church" is a "trademark name" while 55.3% stated it to be a "category name." (Id. at 18.)

The Court finds that Poret's survey must be excluded for four independent...