LINCARE HOLDINGS INC.

v.

DOXO, INC.

This matter is before the Court on consideration of Defendant Doxo, Inc.’s Motions in Limine (Doc. # 120), filed on February 9, 2024. Plaintiffs Lincare Holdings Inc. and Lincare Licensing Inc. responded on February 23, 2024. (Doc. 125). As explained below, the Motion is denied.

I. Background

Plaintiffs are national health care companies that provide patients “with top quality treatments and durable medical equipment.” (Doc. # 107 at 3). Plaintiffs' “portfolio includes healthcare goods and services offered in connection with the trademarks LINCARE, mdINR, CONVACARE, AMERICAN HOMEPATIENT, PREFERRED HOMECARE, and the trade name SPECIALIZED MEDICAL SERVICES.” (Id.). Doxo runs an all-inone bill pay service that allows users to pay bills to over

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120,000 billers using Doxo's website. (Doc. # 78-1 at ¶ 2). Doxo, although unaffiliated with Plaintiffs, includes Plaintiffs as billers that can be paid through Doxo’s website. Doxo's biller pages for Plaintiffs include use of Plaintiffs’ trademarks and trade name.

Plaintiffs initiated this action against Doxo on October¹³, 2022, asserting claims for trademark and service mark infringement in violation of Section 32 of the Lanham Act (Count 1); false representation and false designation of origin in violation of Section 43(a) of the Lanham Act (Count 2); unfair competition in violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Count³); trademark infringement, trade name infringement, and unfair competition under Florida common law (Count⁴); and tortious interference with business relationships (Count⁵). (Doc. # 1). The case proceeded through discovery. The Court has ruled on the parties' Daubert motions and Doxo’s motion for summary judgment. (Doc. ## 116, 119).

Now, Doxo seeks to exclude three categories of evidence from introduction at trial. (Doc. # 120). The Motion is fully briefed and ripe for review. (Doc. # 125).

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II. Legal Standard

“A motion in limine presents a pretrial issue of admissibility of evidence that is likely to arise at trial, and as such, the order, like any other interlocutory order, remains subject to reconsideration by the court throughout the trial.” In re Seroquel Prods. Liab. Litig., Nos. 6:06- md-1769-ACC-DAB,⁶:07-cv-15733-ACC-DAB, 2009 WL 260989, at *1 (M.D. Fla. Feb.⁴, 2009). “The real purpose of a motion in limine is to give the trial judge notice of the movant’s position so as to avoid the introduction of damaging evidence which may irretrievably [a]ffect the fairness of the trial.” Id. (internal quotation omitted). “A court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds.” Id. (internal quotation omitted).

“A motion in limine is not the proper vehicle to resolve substantive issues, to test issues of law, or to address or narrow the issues to be tried.” LSQ Funding Grp. v. EDS Field Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012) (citing Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No. 07-80172- CIV, 2008 WL 2323900, at *1 (S.D. Fla. June⁵, 2008)). “Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at

Federal Rule of Civil Procedure 401 defines “relevant evidence" as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Irrelevant evidence is inadmissible. Fed. R. Evid. 402. All relevant evidence is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 402, 403; United States v. Ross, 33 F. 3d 1507, 1524 (11th Cir. 1994). Use of Rule 403 to exclude relevant evidence is an “extraordinary remedy” whose “major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial

The district court has broad discretion to determine the admissibility of evidence, and the appellate court will not disturb this Court's judgment absent a clear abuse of discretion. United States v. McLean, 138 F. 3d 1398, 1403 (11th Cir. 1998); see also United States v. Jernigan, 341 F. 3d 1273, 1285 (11th Cir. 2003) (“Inherent in this standard is the firm recognition that there are difficult evidentiary rulings that turn on matters uniquely within the purview of the district court, which has first-hand access to documentary evidence and is physically proximate to testifying witnesses and the jury.”).

III. Analysis

Doxo seeks to exclude three categories of evidence from trial. The Court will address each separately.

A. Plaintiffs' Call Logs/Notes

First, Doxo argues that the Court should exclude “Lincare's various call logs prepared by its customer support agents, which constitute unreliable, inadmissible, and often multilayered hearsay.” (Doc. # 120 at 1). “The call logs are neither recordings nor verbatim transcriptions of actual words spoken by Lincare’s customers. Instead, they reflect

The Motion is denied on this issue. The call logs/notes contain two layers of statements: (1) the notes written by Plaintiffs' customer representatives, for which the customer representatives are the declarants; and (2) the statements of Plaintiffs' customers made to and recorded by the customer representatives, for which the customers are the declarants. Under Federal Rule of Evidence 805, “[h]earsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.” Fed. R. Evid. 805. Thus, both layers of double hearsay must satisfy a hearsay exception to be admissible. Alternatively, there would be no hearsay problem if the customers' statements recorded within the notes are not hearsay.

The Court agrees with Plaintiffs that the customers’ statements to Plaintiffs' customer representatives are not hearsay or are subject to the state of mind exception to hearsay. “The majority of courts have held either that testimony of plaintiff’s employees as to confused customers

The Fifth Circuit persuasively explained its finding that testimony about phone calls from confused customers was admissible:

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Armco Burglar Alarm contends that the trial judge committed reversible error in admitting this evidence because it was hearsay. The trial judge, however, correctly held this evidence admissible because it was not being offered “to prove the truth of the matter asserted.” F. R. Evid. 801(c). The testimony about phone calls and conversations was not being offered to show that Armco and Armco Burglar Alarm were the same business, but to show that people thought they were. Armco Burglar Alarm claims that the statements were the equivalent of “I believe that defendant and plaintiff are one and the same or are related,” and were offered to prove the truth of the matter asserted, namely that the declarant actually did hold such a belief. Even so, they would be admissible under the state of mind exception. F. R. Evid. 803(3).

Armco, Inc. v. Armco Burglar Alarm Co., 693 F. 2d 1155, 1160 n.10 (5th Cir. 1982); see also Streamline Prod. Sys., Inc. v. Streamline Mfg., Inc., 851 F. 3d 440, 458 (5th Cir. 2017) (“We have previously rejected hearsay objections to indirect testimony about actual confusion, explaining that such evidence is not offered for the truth of the matter asserted but rather to show effect on consumers, namely, confusion. Therefore, SPSI's evidence of actual confusion is not entitled to any less weight by virtue of its source. (citing Armco, Inc., 693 F. 2d at 1160 & n.10)). This Court agrees with the majority approach and finds that the customers' statements, which are embedded in the call logs/notes, are not hearsay or, alternatively, satisfy the state of mind exception.

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As for the call logs/notes written by the customer representatives, the business records exception under Rule 803(6) applies. Rule 803(6) provides:

A record of an act, event, condition, opinion, or diagnosis [is admissible] if:

(A) the record was made at or near the time by or from information transmitted by someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6).

Here, Plaintiffs’ call logs/notes are admissible business records. As noted in the declaration of Susan Johnson (Plaintiffs’ Regional Vice President of Billing), these notes are contemporaneously prepared whenever a patient contacts Lincare “as a regular part of Lincare's business operations.” (Doc. # 126 at ¶ 7). Plaintiffs’ “call agents are extensively trained on how to take contemporaneous and accurate records.”

Additionally, Doxo has not convinced the Court at this time that “the source of information or the method or circumstances of preparation indicate a lack of trustworthiness." Fed. R. Evid. 803(6)(Ε). Johnson's declaration convincingly addresses why certain notes mention Doxo and the consumer confusion issue:

Where and when it is appropriate to do so, Lincare's agents sometimes try to discern whether the above callers understand whom they are calling and speaking with. In doing so, they may note that Doxo and Lincare are not the same company nor are they

B. Third-Party Disputes

Next, Doxo seeks to exclude “all evidence of, or testimony relating to, cease and desist letters sent to Doxo by third-party billers, as well as any third-party complaints or disputes that involve marks not at issue here and were not fully adjudicated.” (Doc. # 120 at 7). According to Doxo, this evidence is “irrelevant” because “documents specific to one trademark are largely irrelevant to a claim for infringement of an entirely separate mark.” (Id. at 7-8). Additionally, Doxo maintains that mere complaints by third parties about alleged infringement are not relevant to the willfulness of Doxo’s infringement. (Id. at 9). While Doxo admits that “[f]ormal findings of past infringement may be

The Court disagrees with Doxo as to the issues of willfulness, intent, and bad faith. The cease-and-desist letters and other third-party disputes put Doxo on notice that other businesses believed that Doxo's use of their trademarks on its website infringed their trademarks. But as Plaintiffs tell it Doxo continued to prominently use various businesses' trademarks, including Plaintiffs’ trademarks, on its website in the same way despite this notice.

Thus, these letters are relevant to Doxo’s intent, bad faith, and willfulness in using Plaintiffs’ trademarks. See Gucci Am., Inc. v. Guess?, Inc., 858 F. Supp. 2d 250, 254 (S.D.N.Y. 2012) (“Because Gucci’s claim against MFF for money damages requires proof of bad faith, evidence that supports such a finding is both relevant and material. For this reason, evidence of the American Disputes including the cease-anddesist letters is presumptively admissible under Federal Rule of Evidence 402.”); Johnson & Johnson Consumer Cos., Inc. v. Aini, 540 F. Supp. 2d 374, 392 (E.D.N.Y. 2008) (“[T]he court takes notice that six (and possibly more) separate federal actions have been brought against some or all of the

C. Ms. Butler's Testimony on Certain Marks

Finally, Doxo contends that Plaintiffs' survey expert, Sarah Butler, should not be able to offer opinions regarding Plaintiffs’ trademarks besides the LINCARE mark. (Doc. # 120 at 11). It emphasizes that Ms. Butler's survey only involved the LINCARE mark and, thus, her opinion stated in here report that there is “no reason to believe [that her] conclusions as to confusion would differ for” Plaintiffs' other marks should not be admissible. (Id.) Doxo notably does not address the Federal Rules of Evidence in support of this section of its Motion. (Id. at 11-12). Instead, Doxo cites law regarding expert reports and at least one case deciding a Daubert motion

Importantly, the Court has already denied Doxo′s Daubert motion to exclude Ms. Butler's expert testimony, which among other things raised the same argument regarding Ms. Butler's opinion on the non-LINCARE marks. (Doc. # 79 at 22-23; Doc. 116 at 10-12). In that Order, the Court held that Ms. Butler's methodology in conducting her survey and reaching her opinions was “reliable enough for it to be presented” to the factfinder, with “any alleged flaws in Ms. Butler’s methodology go[ing] to the weight to be accorded her survey, not its admissibility.” (Doc. # 116 at 11). Thus, the Court has already rejected a Daubert challenge to Ms. Butler's opinions and will not reconsider that ruling now.

To the extent Doxo could be interpreted as raising a challenge to the admissibility of Ms. Butler's opinion under the Federal Rules of Evidence, that challenge likewise fails. Ms. Butler’s opinion regarding these trademarks is relevant to the trademark infringement claims and exclusion under Rule 403 is unwarranted. Doxo can cross-examine Ms. Butler and

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

Defendant Doxo, Inc.'s Motion in Limine (Doc. # 120) is

DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this 29th day of February, 2024.

VIRGINIA M. HERNANDEZ COVINGTON

UNITED STATES DISTRICT JUDGE

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