Case: 19-2279     Document: 50    Page: 1   Filed: 09/25/2020




        NOTE: This disposition is nonprecedential.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, ar-
 gued 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, 

(D.
 Minn. July 10, 2019) (“Decision”). Wing appeals. For the
 reasons below, we reverse-in-part, affirm-in-part, and re-
 mand.
                               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 dis-
 putes, 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, 

, 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 adver-
 tising ANSI conformance: (1) the label on the side of
 Tricam’s ladders, which reads “manufacturer certifies con-
 formance to OSHA ANSI A14.2 code for metal ladders,” Ap-
 pellant’s Br. 18 (capitalization normalized); (2) the
 statement on The Home Depot’s website, which reads
 “ANSI Certified, OSHA Compliant,”

; and (3) the
 statement on Tricam’s website, which reads “ANSI A14.2;
 OSHA,”

n.16.
     To prevail on a false-advertising claim, a plaintiff
 must, among other things, prove that “the deception is ma-
 terial, in that it is likely to influence the purchasing deci-
 sion.” United Indus. Corp. v. Clorox Co., 

,
 1180 (8th Cir. 1998). To help prove materiality, Wing com-
 missioned 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 (capi-
 talization 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 respond-
 ents 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 pur-
 chase decisions.” J.A. 4894.
     The Labeling Survey showed a test group the side la-
 beling of a Gorilla Ladder containing the allegedly false
 ANSI statement as well as a statement about OSHA com-
 pliance. 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 Con-
 trol 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 re-
 ported likelihood of purchase.” J.A. 4894.
     Tricam also presented survey results. Of relevance,
 Tricam retained Dr. Debbie Triese “to conduct survey mar-
 ket 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 con-
 cluded from her survey results that “only 2% of the . . . re-
 spondents [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 re-
 port also observed that Mr. Poret had failed to “isolate the
 effect, if any, of the ANSI” statement on consumers, focus-
 ing 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 in-
 clude 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 as-
 serting 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 supple-
 mental interrogatory responses. See J.A. 861–95. The
 magistrate judge reasoned that allowing Wing to supple-
 ment its interrogatory responses after the close of fact dis-
 covery 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 testi-
 mony, 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 is-
 sue in this case is material to consumers’ purchasing deci-
 sions.” Decision, 

, at *11. The district
 court reasoned that “[k]nowing that industry safety stand-
 ards in general are important to consumers’ purchasing de-
 cisions does nothing to predict whether consumers might
 be dissuaded from buying a ladder that does not meet cur-
 rent ANSI standards” because Mr. Poret did not “ask about
 ANSI specifically.”

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 conform-
 ance.”

(emphasis in original). The court also ex-
 cluded 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 OSHA-
 conformance statement is false” yet having its survey evi-
 dence premised “on the conclusion that the OSHA-
 conformance statement is false.”

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 inter-
 play 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., 

, 1082 (Fed. Cir. 2014). The Eighth
 Circuit reviews a district court’s exclusion of expert testi-
 mony for abuse of discretion. Sappington v. Skyjack, Inc.,
 

, 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 rele-
 vance and reliability.”

Merrell Dow
 Pharms., Inc., 

, 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.’”

Senco
 Prods., Inc., 

, 686 (8th Cir. 2001)). Accord-
 ingly, an expert’s opinion should be excluded only “if it is
 so fundamentally unsupported that it can offer no assis-
 tance to the jury.” Wood v. Minn. Mining & Mfg. Co., 

, 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.” 

(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 un-
 fair prejudice, confusion of issues, or misleading the jury.”
 United States v. Solorio-Tafolla, 

, 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 ANSI-
 conformance statement . . . is material to consumers’ pur-
 chasing decisions.” Decision, 

, at *11.
     Wing contends that the district court abused its discre-
 tion. Specifically, Wing contends that the court improperly
 narrowed the field of relevant evidence by requiring the
 Importance Survey to ask specifically about ANSI conform-
 ance. 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 Im-
 portance 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 stand-
 ards 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. With-
 out 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 tes-
 timony should be admissible unless it is “so fundamentally
 unsupported that it can offer no assistance to the jury.”
 

. Because Mr. Poret’s testimony con-
 cerning 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 testi-
 mony 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 im-
 portance 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 spe-
 cifically 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 not-
 withstanding that these surveys did not ask about the par-
 ticular statement or product at issue. See, e.g., Comfort
 Corp. v. Tempur Sealy Int’l, Inc., No. 13-2451, 

, at *15–16 (D. Minn. Sept. 28, 2016) (denying mo-
 tion to exclude survey as not relevant to materiality not-
 withstanding 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., 

, 814 (D. Minn. 2011) (determining that a
 study “can reasonably provide circumstantial evidence of
 materiality with respect to . . . products that were not in-
 cluded 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., 

, 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 cen-
 tered on a particular mall store’s loss of profits).
      In its briefing and further highlighted during oral ar-
 gument, Tricam argued that 3M Innovative Properties Co.
 v. Dupont Dow Elastomers LLC, 

 (D. Minn. 2005), made clear that evidence is relevant to
 materiality only if it asks about the particular statement-
 at-issue. We do not read 3M Innovative as standing for
 such an exacting requirement. In 3M Innovative, the al-
 leged false statement related to the advertising of a prod-
 uct as “new,” and the evidence put forward regarding
 materiality showed that consumers’ purchasing decisions
 were based on the “product’s performance.” See

The court ultimately determined that the record was
 “devoid of admissible evidence that would allow a reasona-
 ble jury to find or to infer that customers relied on the ‘new,
 rheology-modified’ statements in making purchasing deci-
 sions.”

     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 estab-
 lish a relationship between the product being “new” and
 the product’s performance. In this case, however, the Im-
 portance 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 Sur-
 vey’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 in-
 dustry safety standard based on how Tricam displayed
 ANSI conformance. See Decision, 

, at
 *11. Further, Dr. Triese’s survey results suggest that con-
 sumers 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 regard-
 ing 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, 

, at *7, *11. Second, contrary to Tricam’s sugges-
 tion, Wing not only uses Dr. Triese’s survey results to at-
 tempt 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 Re-
 ply 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 re-
 sults to refute an argument advanced by Tricam. Third,
 although neither party cites binding Eighth Circuit prece-
 dent 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., 

, 765–66 (E.D. Va. 2014)). Here the district court found
 no issue with Wing “point[ing] to survey evidence gener-
 ated by one of Tricam’s experts”—Dr. Triese. Decision,
 

, 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 discre-
 tion in excluding Mr. Poret’s testimony about the Im-
 portance Survey.
                              C
     The district court also granted Tricam’s motion to ex-
 clude Mr. Poret’s testimony about the results of the Label-
 ing 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, 

, at *11. The court reasoned that testimony about
 the Labeling Survey would not be relevant because the La-
 beling 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 discre-
 tion in focusing too heavily on the fact that the Labeling
 Survey did not separate ANSI compliance from OSHA com-
 pliance. Wing also argues that including the Labeling Sur-
 vey would not result in jury confusion or unfair prejudice.
 In arguing that jury confusion could be limited, Wing con-
 tends that a jury could be instructed that the Labeling Sur-
 vey “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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 WING ENTERPRISES, INC.   v. TRICAM INDUSTRIES, INC.         13



 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 supple-
 mental interrogatory responses, already addressed any un-
 fair 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 Label-
 ing Survey.
     First, the district court was not deciding whether testi-
 mony 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 in-
 terrogatory responses. See Decision, 

,
 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 as-
 sumption that Tricam’s ladders do not comply with OSHA.
 Decision, 

, at *11. In light of OSHA com-
 pliance not being part of this case, we disagree that the
 court abused its discretion when it excluded testimony
 about the survey. See 

–92 (de-
 scribing 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 “diffi-
 culty imagining[] how a jury might be instructed that, alt-
 hough 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, 

, at *11. Wing suggests that
 the jury can be instructed that the Labeling Survey is sub-
 mitted only as it relates to the materiality of the ANSI la-
 bel. 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 pur-
 chase”), 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, 

,
 at *11. As the magistrate judge’s order made clear, before
 supplementing its interrogatory responses, Wing never al-
 leged 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 re-
 spondents 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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 WING ENTERPRISES, INC.   v. TRICAM INDUSTRIES, INC.          15



     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 sum-
 mary judgment, we apply the law of the regional circuit in
 which the district court resides. VersaTop Support Sys.,
 LLC v. Ga. Expo, Inc., 

, 1368 (Fed. Cir. 2019).
 In the Eighth Circuit, a grant of summary judgment is re-
 viewed de novo. Buetow v. A.L.S. Enters., 

,
 1185 (8th Cir. 2011). In deciding a summary judgment mo-
 tion, 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., 

, 747 (8th Cir. 1996).
 Summary judgment is proper if there exists no genuine is-
 sue of any material fact and the moving party is entitled to
 judgment as a matter of law. 

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

, 756 (8th Cir. 2001) (“[S]ummary
 judgment is inappropriate when the record permits reason-
 able minds to draw conflicting inferences about a material
 fact.”).
     Relevant to this case, for a plaintiff to establish a false-
 advertising claim, the plaintiff must prove that the decep-
 tion is “material,” in that it is “likely to influence the pur-
 chasing decision.” United 

.
                                B
      The district court, in granting Tricam’s summary judg-
 ment 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.
Case: 19-2279    Document: 50      Page: 16    Filed: 09/25/2020




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



     As already noted, the Importance Survey suggests that
 consumers consider compliance with industry safety stand-
 ards an important consideration when making a purchas-
 ing 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 sur-
 vey 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 tak-
 ing the inferences that may reasonably be drawn from the
 evidence in the light most favorable to Wing, the nonmov-
 ing party, we determine that a reasonable jury could find
 in favor of Wing as to the materiality element. 2 We deter-
 mine, therefore, that the district court improperly granted
 Tricam’s summary judgment motion on materiality.
     Because we determine that the district court improp-
 erly 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 sum-
 mary 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 Sur-
 vey. 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 ma-
 teriality element of Wing’s claims”). Although the district
 court here was discussing inclusion of testimony about both
 the Importance Survey and Labeling Survey, this never-
 theless reinforces our conclusion that a triable issue exists
 when the Importance Survey is included as relevant evi-
 dence.
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 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 substan-
 tially unsettled legal issues.” Decision, 

,
 at *12. Accordingly, rather than resolve these issues with-
 out the benefit of the district court’s reasoning, we deter-
 mine 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., 

, 1385 (Fed.
 Cir. 2020) (declining to consider alternative grounds for af-
 firmance 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.