NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

WING ENTERPRISES, INC., DBA LITTLE GIANT 

LADDER SYSTEMS,

Plaintiff-Appellant

v.

TRICAM INDUSTRIES, INC.,

Defendant-Appellee

______________________

2019-2279

______________________

Appeal from the United States District Court for the 

District of Minnesota in No. 0:17-cv-01769-ECT-ECW, 

Judge Eric C. Tostrud.

______________________

Decided: September 25, 2020

______________________

MARK A. MILLER, Dorsey & Whitney LLP, Salt Lake 

City, UT, argued for plaintiff-appellant. Also represented 

by ELLIOT HALES; TIMOTHY J. DROSKE, Minneapolis, MN. 

 ERIC CHADWICK, DeWitt LLP, Minneapolis, MN, argued for defendant-appellee. Also represented by ZACHARY 

PAUL ARMSTRONG. 

 ______________________

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2 WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC.

Before PROST, Chief Judge, REYNA and TARANTO, Circuit 

Judges.

PROST, Chief Judge.

The United States District Court for the District of 

Minnesota granted defendant Tricam Industries, Inc.’s 

(“Tricam”) motion to exclude testimony from plaintiff Wing 

Enterprises, Inc.’s (“Wing”) expert and granted Tricam’s

motion for summary judgment. See Wing Enters., Inc. v. 

Tricam Indus., Inc., No. 17-cv-01769, 2019 WL 2994465 (D. 

Minn. July 10, 2019) (“Decision”). Wing appeals. For the 

reasons below, we reverse-in-part, affirm-in-part, and remand. 

I

Wing, a manufacturer of multi-position ladders under 

the Little Giant brand, sued Tricam, a manufacturer of 

multi-position ladders under the Gorilla Ladders brand, for

false advertising under both the Lanham Act, 15 U.S.C. 

§ 1125(a), and the Minnesota Deceptive Trade Practices 

Act (“DTPA”), Minn. Stat. § 325D.44, as well as for patent 

infringement. The parties resolved the patent-related disputes, leaving only the false-advertising claims.1

Wing’s false-advertising claims center on its allegation

that Tricam falsely advertised that its Gorilla Ladders 

comply with American National Standards Institute 

(“ANSI”) A14.2. ANSI A14.2 is an industry safety standard 

that applies to metal multi-position ladders, such as those 

in this case. Wing contends that Tricam’s ladders do not 

1 The district court determined that the standards 

for a false-advertising claim under the Lanham Act and the 

DTPA are the same. See Decision, 2019 WL 2994465, at *2. 

The parties have not challenged this determination. Like 

the district court and parties, we therefore focus on caselaw 

surrounding the Lanham Act.

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WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC. 3

meet the requirements of ANSI A14.2 Section 6.7.5. This 

section requires that the rung on a multi-position ladder 

have a “step surface of not less than 1 inch.” Appellee’s

Br. 4 (citing J.A. 2502–03). 

Wing alleged three instances of Tricam falsely advertising ANSI conformance: (1) the label on the side of 

Tricam’s ladders, which reads “manufacturer certifies conformance to OSHA ANSI A14.2 code for metal ladders,” Appellant’s Br. 18 (capitalization normalized); (2) the 

statement on The Home Depot’s website, which reads

“ANSI Certified, OSHA Compliant,” id. at 20; and (3) the 

statement on Tricam’s website, which reads “ANSI A14.2; 

OSHA,” id. at 20 n.16.

To prevail on a false-advertising claim, a plaintiff 

must, among other things, prove that “the deception is material, in that it is likely to influence the purchasing decision.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 

1180 (8th Cir. 1998). To help prove materiality, Wing commissioned Mr. Hal Poret to conduct two surveys. These 

surveys have been called the Importance Survey and the 

Labeling Survey. 

The Importance Survey asked respondents to rank the 

factors they consider important when purchasing a ladder. 

The survey provided respondents with a list of factors, 

which included “strength/duty rating,” “compliance with 

industry safety standards,” “hinge lock size/style,” “feet 

material/style,” and “company name.” J.A. 4891–92 (capitalization normalized). According to Mr. Poret, the survey 

results showed that “compliance with industry safety 

standards was ranked first as the most important factor by 

more respondents (19%) than any other factor except for 

strength/duty rating” and that a “total of 58% of respondents rated compliance with industry safety standards an 

important factor.” J.A. 4894 (emphasis omitted). From 

these results, Mr. Poret concluded that “compliance with 

industry safety standards is the type of issue that is 

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4 WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC.

important to consumers and would tend to . . . impact purchase decisions.” J.A. 4894. 

The Labeling Survey showed a test group the side labeling of a Gorilla Ladder containing the allegedly false 

ANSI statement as well as a statement about OSHA compliance. J.A. 4882–83. It then showed a control group “an 

altered version” of the labeling in which “all references to 

compliance with OSHA/ANSI standards were removed.” 

J.A. 4883. The survey results showed that 69% of the test 

group members indicated that they were “extremely or 

very likely to purchase the ladder with the OSHA/ANSI 

content present,” which “exceeded the corresponding Control Group rate (55%) by a margin of 14%.” J.A. 4893. 

Based on the survey’s results, Mr. Poret concluded that the 

“OSHA/ANSI content did have a significant impact on reported likelihood of purchase.” J.A. 4894. 

Tricam also presented survey results. Of relevance, 

Tricam retained Dr. Debbie Triese “to conduct survey market research to determine if the ANSI statement on the one

side label does, in fact, influence consumers’ purchasing of 

multi-position ladders.” J.A. 3714. While Dr. Triese concluded from her survey results that “only 2% of the . . . respondents [in her survey] could have potentially been 

influenced by the ANSI label,” J.A. 3734, as Wing points 

out, the survey results also showed that 67.5% of survey 

respondents “stated they had read the side label before 

buying the ladder,” 42.4% of the respondents had heard of 

ANSI, and 21.9% of the respondents clearly knew what 

ANSI was, J.A. 3727–29, 4827–28. Dr. Triese’s expert report also observed that Mr. Poret had failed to “isolate the 

effect, if any, of the ANSI” statement on consumers, focusing instead on the effect of an ANSI-OSHA statement or on 

industry safety standards in general. J.A. 4951. 

Nearly two months after the close of fact discovery and 

one week after receiving Dr. Triese’s report, Wing moved 

to supplement its responses to Tricam’s initial

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WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC. 5

interrogatories. In particular, Wing wanted to supplement 

its responses to interrogatories asking Wing to “‘[i]dentify 

with specificity the alleged misleading or false statement(s) 

made by Tricam.’” J.A. 861 (alteration in original). Wing’s 

initial responses to these interrogatories did not mention

OSHA. See, e.g., J.A. 861 (“Tricam’s false statements include but are not limited to Tricam’s representation . . . 

that its accused ladders are ANSI compliant.”). Wing’s 

supplemental responses, however, included OSHA. See, 

e.g., J.A. 862 (“‘Manufacturer certifies conformance to 

OSHA ANSI A 14.2 Code for metal ladders’ . . . . [T]he 

[multi-position] ladders do not comply with all aspects of 

the ANSI A14.2 standard, which is the basis for Tricam asserting that the [multi-position] ladders are ANSI and 

OSHA compliant . . . .” (capitalization normalized)). In a 

detailed analysis not challenged on appeal, the magistrate 

judge concluded that Wing failed to timely disclose its 

OSHA-related contentions and struck Wing’s supplemental interrogatory responses. See J.A. 861–95. The 

magistrate judge reasoned that allowing Wing to supplement its interrogatory responses after the close of fact discovery would prejudice Tricam because Tricam would have 

to “re-litigate the case based on a new contention that the

OSHA statements were false” and incur “the consequent 

delay and expense.” J.A. 893.

Shortly thereafter, Tricam moved to exclude testimony 

from Mr. Poret about his surveys, arguing that the surveys 

were not relevant. On the same day, Tricam also moved 

for summary judgment, arguing that Wing could not meet 

its burden to establish any of the five elements of a false 

advertising claim. 

Before it addressed Tricam’s motion to exclude testimony, the district court first recounted the magistrate 

judge’s order striking Wing’s supplemental interrogatory 

responses. The court then discussed both of Mr. Poret’s 

surveys and granted Tricam’s motion to exclude Mr. Poret’s 

testimony about both surveys. In excluding testimony 

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6 WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC.

about the Importance Survey, the district court determined

that the survey results were “not relevant to the question 

of whether the ANSI-conformance statement that is at issue in this case is material to consumers’ purchasing decisions.” Decision, 2019 WL 2994465, at *11. The district 

court reasoned that “[k]nowing that industry safety standards in general are important to consumers’ purchasing decisions does nothing to predict whether consumers might 

be dissuaded from buying a ladder that does not meet current ANSI standards” because Mr. Poret did not “ask about 

ANSI specifically.” Id. 

In excluding testimony about the Labeling Survey, the 

district court determined that the results of the survey

were not relevant because it “tested the importance of 

ANSI conformance in combination with OSHA conformance.” Id. at *5 (emphasis in original). The court also excluded the Labeling Survey for two additional reasons. 

First, the district court determined that jury confusion 

would exist in light of Wing “not arguing that the OSHAconformance statement is false” yet having its survey evidence premised “on the conclusion that the OSHAconformance statement is false.” Id. at *11. Second, with 

the magistrate judge having ruled that OSHA conformance 

was never part of the case, see J.A. 861–95, the district 

court determined that Tricam would be unfairly prejudiced 

if the Labeling Survey was included because Tricam lacked 

an opportunity to take meaningful discovery on the interplay between ANSI and OSHA.

After excluding testimony about either the Importance 

Survey or the Labeling Survey, the district court granted

Tricam’s summary judgment motion, concluding that Wing 

could not meet its burden with respect to materiality. The 

court determined that the admissible evidence—testimony 

from a high-level Wing executive, Tricam’s president, and 

the chairman of the ANSI Labeling Committee—was too

speculative to help Wing overcome Tricam’s summary 

judgment motion. The court also declined to adopt the 

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WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC. 7

“inherent quality or characteristic” test, a test that has not 

been applied by the Eighth Circuit, to show materiality. 

Accordingly, the district court granted Tricam’s motion for 

summary judgment.

Wing timely appealed, challenging both the district 

court’s exclusion of Mr. Poret’s testimony and its grant of

summary judgment. This court has jurisdiction under 28 

U.S.C. § 1295(a)(1).

II

A

We review a district court’s exclusion of evidence under 

the law of the regional circuit. SSL Servs., LLC v. Citrix 

Sys., Inc., 769 F.3d 1073, 1082 (Fed. Cir. 2014). The Eighth 

Circuit reviews a district court’s exclusion of expert testimony for abuse of discretion. Sappington v. Skyjack, Inc., 

512 F.3d 440, 448 (8th Cir. 2008). 

“[A]dmissibility of expert testimony is governed by 

Federal Rule of Evidence 702; under Rule 702 the trial 

judge acts as a ‘gatekeeper’ screening evidence for relevance and reliability.” Id. (quoting Daubert v. Merrell Dow 

Pharms., Inc., 509 U.S. 579, 589 (1993)). “‘Rule 702 reflects 

an attempt to liberalize the rules governing the admission 

of expert testimony. The rule clearly is one of admissibility 

rather than exclusion.’” Id. (quoting Lauzon v. Senco 

Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001)). Accordingly, an expert’s opinion should be excluded only “if it is 

so fundamentally unsupported that it can offer no assistance to the jury.” Wood v. Minn. Mining & Mfg. Co., 112 

F.3d 306, 309 (8th Cir. 1997) (internal quotation marks 

omitted). 

In applying Rule 702, the Eighth Circuit has stated 

that the “evidence based on scientific, technical, or other 

specialized knowledge must be useful to the finder of fact 

in deciding the ultimate issue of fact. This is the basic rule 

of relevancy.” Lauzon, 270 F.3d at 686 (citation omitted). 

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8 WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC.

Further, “under Daubert and Rule 403 of the Federal Rules 

of Evidence, the probative value of the expert testimony 

must not be substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.”

United States v. Solorio-Tafolla, 324 F.3d 964, 966 (8th Cir. 

2003). 

B

The district court excluded Mr. Poret’s testimony about 

the results of the Importance Survey because it determined 

that the results were “not relevant to the key question in 

this case,” which the court framed as whether “the ANSIconformance statement . . . is material to consumers’ purchasing decisions.” Decision, 2019 WL 2994465, at *11. 

Wing contends that the district court abused its discretion. Specifically, Wing contends that the court improperly 

narrowed the field of relevant evidence by requiring the 

Importance Survey to ask specifically about ANSI conformance. Wing argues that the Importance Survey clears the 

low hurdle of relevance because the survey answers the 

question of whether consumers consider compliance with 

industry safety standards to be important. 

Tricam counters that the district court did not abuse 

its discretion in determining that testimony about the Importance Survey would not be relevant. In support, Tricam 

argues that the Importance Survey is not relevant because 

the survey only asks about generic industry safety standards and not specifically about ANSI. Tricam also contends

that the Importance Survey does not show that consumers 

even know that ANSI is an industry safety standard. Without Wing demonstrating that consumers know ANSI is an 

industry safety standard, the Importance Survey cannot be 

relevant, Tricam argues.

The district court’s only reason for excluding Mr. Poret 

from testifying about the Importance Survey was that such 

testimony would not be relevant. Evidence is relevant, 

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WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC. 9

however, if the evidence “has any tendency to make a fact 

[of consequence] more or less probable than it would be 

without the evidence.” Fed. R. Evid. 401. And expert testimony should be admissible unless it is “so fundamentally 

unsupported that it can offer no assistance to the jury.” 

Wood, 112 F.3d at 309. Because Mr. Poret’s testimony concerning the Importance Survey would have at least some 

tendency to make a fact of consequence more probable than 

it would be without the evidence, and because such testimony is not so unsupported that it would offer no help to 

the jury, we determine that the district court abused its 

discretion in excluding Mr. Poret from testifying about the 

Importance Survey. 

As Wing points out, the Importance Survey suggests 

that ladder consumers consider compliance with industry 

safety standards to be important when making purchasing 

decisions. Because ANSI is unquestionably an industry 

safety standard and is one of the two potential industry 

safety standards relating to ladders in the United States, 

the results of the Importance Survey have at least some

tendency to make a fact of consequence—namely, the importance of ANSI compliance to ladder purchasers—more 

probable than it would be without the evidence.

It is true that the Importance Survey did not ask specifically about ANSI and instead asked about compliance 

with industry safety standards in general. But such a focus 

does not automatically establish that testimony about the 

survey results is not relevant. For example, other district 

court judges for the District of Minnesota have recognized 

the relevance of surveys in the materiality analysis notwithstanding that these surveys did not ask about the particular statement or product at issue. See, e.g., Comfort 

Corp. v. Tempur Sealy Int’l, Inc., No. 13-2451, 2016 WL 

5496340, at *15–16 (D. Minn. Sept. 28, 2016) (denying motion to exclude survey as not relevant to materiality notwithstanding that the survey did “not test the actual 

statements made” but instead used “Test Statements”); 

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10 WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC.

Aviva Sports, Inc. v. Fingerhut Direct Mktg., 829 

F. Supp. 2d 802, 814 (D. Minn. 2011) (determining that a 

study “can reasonably provide circumstantial evidence of 

materiality with respect to . . . products that were not included in th[e] study”). Similarly, although outside the 

context of materiality, the Eighth Circuit has determined 

expert testimony to be admissible as reliable and relevant 

even though the testimony did not address the exact facts 

at hand but instead provided a more general explanation. 

See, e.g., Hartley v. Dillard’s Inc., 310 F.3d 1054, 1061 (8th 

Cir. 2002) (affirming admission of expert testimony that 

“explained the general trend of mall stores losing market 

share to non-mall competitors,” even though the case centered on a particular mall store’s loss of profits). 

In its briefing and further highlighted during oral argument, Tricam argued that 3M Innovative Properties Co. 

v. Dupont Dow Elastomers LLC, 361 F. Supp. 2d 958 

(D. Minn. 2005), made clear that evidence is relevant to 

materiality only if it asks about the particular statementat-issue. We do not read 3M Innovative as standing for 

such an exacting requirement. In 3M Innovative, the alleged false statement related to the advertising of a product as “new,” and the evidence put forward regarding 

materiality showed that consumers’ purchasing decisions 

were based on the “product’s performance.” See id. at 971–

72. The court ultimately determined that the record was 

“devoid of admissible evidence that would allow a reasonable jury to find or to infer that customers relied on the ‘new, 

rheology-modified’ statements in making purchasing decisions.” Id. at 972. 

In 3M Innovative, the alleged false statement related 

to the claim that the product was “new,” while the evidence 

of materiality submitted showed that consumers cared

about product performance. Plaintiffs there failed to establish a relationship between the product being “new” and 

the product’s performance. In this case, however, the Importance Survey asked about industry safety standards

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WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC. 11

and ANSI is an industry safety standard. Here, Wing has 

provided a relationship between the Importance Survey 

and the ANSI statements. 

Tricam also maintains that the Importance Survey is 

not relevant because it does not show that consumers know 

that ANSI is an industry safety standard. This argument 

seems aimed more at the weight that the Importance Survey’s results should be accorded than whether the survey

is relevant. Still, as the district court determined, ladder 

consumers could potentially ascertain that ANSI is an industry safety standard based on how Tricam displayed 

ANSI conformance. See Decision, 2019 WL 2994465, at 

*11. Further, Dr. Triese’s survey results suggest that consumers know that ANSI is an industry safety standard. 

J.A. 3727–29, 4827–28.

To the extent that Tricam maintains that Wing and 

Mr. Poret cannot rely on Dr. Triese’s survey results regarding consumer awareness of ANSI, we disagree. First, this 

argument does not appear to have been raised before the 

district court. In fact, the district court considered and 

cited Dr. Triese’s survey. See, e.g., Decision, 2019 WL 

2994465, at *7, *11. Second, contrary to Tricam’s suggestion, Wing not only uses Dr. Triese’s survey results to attempt to independently create a triable issue for the jury, 

see Appellant’s Br. 46–47, but also uses Dr. Triese’s survey 

results to refute Tricam’s contention that consumers would 

not recognize ANSI as an industry safety standard, see Reply Br. 8–9 (arguing that Dr. Triese’s survey results refute

Tricam’s argument “that consumers don’t know what ANSI 

is”). Put another way, Wing cites Dr. Triese’s survey results to refute an argument advanced by Tricam. Third, 

although neither party cites binding Eighth Circuit precedent about the use of an opposing party’s expert’s survey or 

report, the main case Tricam relies on to argue that Wing 

cannot point to Dr. Triese’s report concludes that whether 

a party may rely on an opposing expert “is committed to 

the sound discretion of the district court.” Reply Br. 7 

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12 WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC.

(quoting N5 Techs. LLC v. Capital One N.A., 56 F. Supp. 3d 

755, 765–66 (E.D. Va. 2014)). Here the district court found 

no issue with Wing “point[ing] to survey evidence generated by one of Tricam’s experts”—Dr. Triese. Decision,

2019 WL 2994465, at *11 (citing J.A. 4827–28). 

Accordingly, although the Importance Survey results

might have more probative value if the survey had asked 

about ANSI compliance specifically, that it did not does not

establish that the results are not relevant. We therefore

agree with Wing that the district court abused its discretion in excluding Mr. Poret’s testimony about the Importance Survey.

C

The district court also granted Tricam’s motion to exclude Mr. Poret’s testimony about the results of the Labeling Survey. The court determined that the survey was not 

relevant and that its inclusion would cause jury confusion 

and unfair prejudice to Tricam. See Decision, 2019 WL 

2994465, at *11. The court reasoned that testimony about 

the Labeling Survey would not be relevant because the Labeling Survey did not ask specifically about ANSI and was 

premised on Tricam’s ladders not complying with OSHA, 

would cause jury confusion because it conflated ANSI and 

OSHA compliance, and would unfairly prejudice Tricam 

because Tricam had previously lacked reason to conduct 

discovery related to the interplay of ANSI and OSHA.

Wing argues that the district court abused its discretion in focusing too heavily on the fact that the Labeling

Survey did not separate ANSI compliance from OSHA compliance. Wing also argues that including the Labeling Survey would not result in jury confusion or unfair prejudice. 

In arguing that jury confusion could be limited, Wing contends that a jury could be instructed that the Labeling Survey “is submitted solely as it relates to the materiality of 

the ANSI label, and that Wing’s claim of liability is in no 

way based upon whether Tricam’s reference to OSHA 

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compliance is false.” Reply Br. 21. In arguing that Tricam 

would not face unfair prejudice, Wing contends that the 

magistrate judge’s order, which struck Wing’s supplemental interrogatory responses, already addressed any unfair prejudice Tricam could face. Reply Br. 20–21.

It is our view that Wing has not demonstrated that the 

district court abused its discretion in excluding the Labeling Survey.

First, the district court was not deciding whether testimony about the Labeling Survey was relevant on a clean 

slate. Rather, the district court’s ruling came after the

magistrate judge’s order striking Wing’s supplemental interrogatory responses. See Decision, 2019 WL 2994465, 

at *7 (referring to the magistrate judge’s order as setting 

the “backdrop” for the court’s ruling to exclude Mr. Poret’s 

testimony). As the magistrate judge’s order made clear, 

compliance with OSHA was not part of the case. See, e.g.,

J.A. 890. The order also detailed the “significant” prejudice 

Tricam would face if OSHA conformance became part of the 

case. See J.A. 892–94. In addition, as the district court 

determined, the Labeling Survey is premised on the assumption that Tricam’s ladders do not comply with OSHA. 

Decision, 2019 WL 2994465, at *11. In light of OSHA compliance not being part of this case, we disagree that the 

court abused its discretion when it excluded testimony 

about the survey. See Daubert, 509 U.S. at 591–92 (describing the consideration of relevance as one of “fit”); id at 

591 (“Expert testimony which does not relate to any issue 

in the case is not relevant”).

Further, the district court determined that allowing 

testimony about the Labeling Survey would result in jury

confusion. Specifically, the court noted that it had “difficulty imagining[] how a jury might be instructed that, although Wing is not arguing that the OSHA-conformance 

statement is false, its survey evidence is premised on the 

conclusion that the OSHA-conformance statement is false.” 

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14 WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC.

Decision, 2019 WL 2994465, at *11. Wing suggests that 

the jury can be instructed that the Labeling Survey is submitted only as it relates to the materiality of the ANSI label. Reply Br. 21. Such a suggestion, however, does not 

alleviate the concern that the Labeling Survey is premised 

on the conclusion that the OSHA-conformance statement 

is false, see, e.g., J.A. 4894 (Mr. Poret concluding that the 

Labeling Survey showed that the “OSHA/ANSI content did 

have a significant impact on reported likelihood of purchase”), or demonstrate that the district court abused its 

discretion. 

The district court also reasoned that allowing Mr. Poret 

to testify about the Labeling Survey would result in unfair 

prejudice because of Tricam’s “lack of opportunity to take 

meaningful discovery on the interplay between ANSI and 

OSHA” and that the Labeling Survey “assumes a degree of 

equivalence between the two.” Decision, 2019 WL 2994465, 

at *11. As the magistrate judge’s order made clear, before

supplementing its interrogatory responses, Wing never alleged that Tricam’s advertisement of OSHA compliance 

was false. Therefore, Tricam had no reason to engage in 

discovery related to OSHA compliance or the relationship 

between ANSI and OSHA. In its reply brief, Wing argues 

that allowing Mr. Poret to testify would not result in unfair 

prejudice to Tricam because any alleged OSHA-related 

false-advertising claim was struck from the case in the 

magistrate judge’s order. Reply Br. 21. Such an argument, 

however, does not address the district court’s concern that 

the Labeling Survey presumes a relationship between 

OSHA and ANSI, see, e.g., J.A. 4889 (describing the survey 

was designed to “establish a measurement of how likely respondents indicate they would be to purchase the ladder 

when shown the labelling content that includes reference 

to OSHA/ANSI compliance”), a relationship that Tricam 

never had reason to engage in discovery over. 

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Accordingly, we disagree with Wing that the district 

court abused its discretion in excluding testimony about 

the Labeling Survey. 

III

A

In reviewing a district court’s decision to grant summary judgment, we apply the law of the regional circuit in 

which the district court resides. VersaTop Support Sys., 

LLC v. Ga. Expo, Inc., 921 F.3d 1364, 1368 (Fed. Cir. 2019). 

In the Eighth Circuit, a grant of summary judgment is reviewed de novo. Buetow v. A.L.S. Enters., 650 F.3d 1178, 

1185 (8th Cir. 2011). In deciding a summary judgment motion, the court “views the evidence and the inferences 

which may be reasonably drawn from the evidence in the 

light most favorable to the nonmoving party.” Enter. Bank 

v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). 

Summary judgment is proper if there exists no genuine issue of any material fact and the moving party is entitled to 

judgment as a matter of law. Sappington, 512 F.3d at 445 

(citing Fed. R. Civ. P. 56(c)); see also Riedl v. Gen. Am. Life 

Ins. Co., 248 F.3d 753, 756 (8th Cir. 2001) (“[S]ummary 

judgment is inappropriate when the record permits reasonable minds to draw conflicting inferences about a material 

fact.”).

Relevant to this case, for a plaintiff to establish a falseadvertising claim, the plaintiff must prove that the deception is “material,” in that it is “likely to influence the purchasing decision.” United Indus., 140 F.3d at 1180.

B

The district court, in granting Tricam’s summary judgment motion, had excluded the Importance Survey from its 

materiality analysis. As discussed, the Importance Survey 

is relevant and should have been included in the analysis. 

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16 WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC.

As already noted, the Importance Survey suggests that 

consumers consider compliance with industry safety standards an important consideration when making a purchasing decision. In addition, the district court acknowledged

that it could be possible for consumers to discern that ANSI 

is an industry safety standard. Further, Dr. Triese’s survey data shows that 42.4% of ladder consumers had heard 

of ANSI and 21.9% of ladder shoppers clearly knew what 

ANSI was. J.A. 3727–28. In view of this evidence and taking the inferences that may reasonably be drawn from the 

evidence in the light most favorable to Wing, the nonmoving party, we determine that a reasonable jury could find 

in favor of Wing as to the materiality element.2 We determine, therefore, that the district court improperly granted 

Tricam’s summary judgment motion on materiality. 

Because we determine that the district court improperly granted summary judgment based on the premise that 

testimony about the Importance Survey was not relevant, 

we find it unnecessary to consider Wing’s other arguments 

about whether the district court erred in granting summary judgment on the materiality element. Further, with 

respect to the alternative grounds of affirmance that 

Tricam raises that are separate from the materiality 

2 We also note that the district court recognized the 

potential for a triable issue as to the materiality element of 

Wing’s claim if the court had included the Importance Survey. See J.A. 5336 (declining Tricam request for attorneys’ 

fees and stating that had Mr. Poret been allowed to testify, 

“it would have created a triable issue of fact as to the materiality element of Wing’s claims”). Although the district 

court here was discussing inclusion of testimony about both 

the Importance Survey and Labeling Survey, this nevertheless reinforces our conclusion that a triable issue exists 

when the Importance Survey is included as relevant evidence.

Case: 19-2279 Document: 50 Page: 16 Filed: 09/25/2020
WING ENTERPRISES, INC. v. TRICAM INDUSTRIES, INC. 17

element, see, e.g., Appellee’s Br. 40, the district court did 

not rule on these grounds. Rather, the district court stated

that these alternative grounds, relating to other elements 

of a false-advertising claim, involved “novel or substantially unsettled legal issues.” Decision, 2019 WL 2994465, 

at *12. Accordingly, rather than resolve these issues without the benefit of the district court’s reasoning, we determine that the proper course of action is to remand to the 

district court to consider whether summary judgment may 

be proper on other grounds. See, e.g., Spigen Korea Co., 

Ltd. v. Ultraproof, Inc., 955 F.3d 1379, 1385 (Fed. 

Cir. 2020) (declining to consider alternative grounds for affirmance of summary judgment when the district court did 

not decide certain grounds in the first instance).

IV

We have considered the parties’ remaining arguments 

and find them unpersuasive. For the foregoing reasons we 

reverse-in-part, affirm-in-part, and remand.

REVERSED-IN-PART, AFFIRMED-IN-PART, AND 

REMANDED

COSTS

The parties shall bear their own costs.

Case: 19-2279 Document: 50 Page: 17 Filed: 09/25/2020