## Facts

- Deere & Company sued FIMCO, Inc. for trademark infringement based on FIMCO’s use of Deere’s green-and-yellow color scheme on farming equipment.
- During discovery, Deere retained an intellectual-property investigator as an expert witness to conduct customer-related inquiries and prepare an expert report.
- While collecting information, the investigator created notes reflecting statements from customers and salespeople.
- The notes reflected that customers commonly completed the prompt “I assume yellow/green farm equipment is made by . . .” with “Deere” or “John Deere.”
- The notes also reflected that some salespeople stated customers did not confuse Deere equipment with FIMCO equipment.
- The expert report did not include the salespeople’s comments indicating a lack of confusion.
- FIMCO sought to use the investigator’s notes at trial, including the portions recounting what the salespeople said.
- Deere filed a pretrial motion seeking to exclude the portions of the notes that recounted the salespeople’s statements.

## Issues

1. Whether the portions of Deere’s expert investigator’s notes recounting salespeople’s statements that customers did not confuse Deere and FIMCO equipment were inadmissible hearsay if offered to prove a lack of confusion.
2. Whether FIMCO could nevertheless use those portions of the notes at trial for limited purposes, such as testing the expert’s methods, completeness, or credibility.

## Decision

- The court held that the salespeople’s out-of-court statements, as recorded in the investigator’s notes, were hearsay if offered for the truth of the matter asserted (that customers were not confused).
- The court allowed FIMCO to use the notes in examining the expert to challenge the basis, completeness, and reliability of the expert’s work and report, rather than as substantive proof of no confusion.
- The court granted Deere’s motion to the extent it sought to prevent FIMCO from introducing the salespeople’s statements as substantive evidence, but denied the motion to the extent it would bar use of the notes to test the expert’s opinions and omissions.

## Legal Principles

- Out-of-court statements offered to prove the truth of what they assert are hearsay and are inadmissible unless a rule permits their admission.
- When an expert relies on information gathered from others, the opposing party may cross-examine the expert about the information considered and what was omitted, even if some underlying statements would be inadmissible as standalone proof.
- Courts may permit limited use of otherwise inadmissible underlying material to evaluate an expert’s methods and credibility, while restricting use of that material as substantive evidence.
- Evidence rulings may draw a line between (a) using recorded statements to prove the statements’ truth and (b) using them to show what the expert did, did not do, or should have considered in forming opinions.

## Conclusion

In this pretrial ruling in Deere’s trademark case against FIMCO, the court treated the investigator’s recorded dealer statements about “no confusion” as hearsay when offered to prove that point, but permitted FIMCO to use the notes in examining the expert to probe the foundation and completeness of his report and opinions, with limits preventing the statements from being used as substantive proof.


Deere & Company v. FIMCO, INC., 260 F. Supp. 3d 830 (2017)