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Obesity Research Institute, LLC v. Fiber Research International, LLC

United States District Court, S.D. California

March 29, 2017



          Hon. Cynthia Bashant United States District Judge

         On March 16, 2015, Plaintiff Obesity Research Institute, LLC (“ORI”) filed a Complaint for Declaratory Judgment against Defendant Fiber Research International, LLC (“FRI”) asking the Court to declare that it has no liability under either the Lanham Act, the Federal Food, Drug, and Cosmetic Act (“FFDCA”), California's Unfair Competition Law (“UCL”), and California's False Advertising Law (“FAL”). (ECF No. 1.) On April 13, 2015, FRI filed its Answer and Counterclaims. (ECF No. 16.)

         Presently before the Court is FRI's Motion to Exclude ORI's Non-Retained Expert Witnesses. (ECF No. 192.) FRI argues that the witnesses are unqualified and their testimony is not based on sufficient facts and data to help the trier of the fact determine relevant issues in the case. ORI opposes.

         The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). For the following reasons, the Court GRANTS FRI's motion.

         I. BACKGROUND

         On March 10, 2015, FRI sent a letter to ORI claiming ORI was in violation of the Lanham Act and the FFDCA. (Ferrell Decl. Ex. 1, ECF No. 24-4.) FRI alleged that the glucomannan used in ORI's trademarked Lipozene is not equivalent to the grade of glucomannan used in Shimizu Chemical Corporation's (“Shimizu”) trademarked Propol.[1] (Ferrell Decl. Ex. 1.) ORI allegedly relied on studies of the effectiveness of glucomannan in Propol as a basis for marketing the effectiveness of Lipozene.[2] (Id.) FRI contends that the results of Lipozene are not comparable to the results in the studies because the glucomannan in Lipozene has a lower viscosity than the glucomannan in Propol. (Id.) Due to the purported differences between the glucomannan in Lipozene and Propol, FRI asserts that ORI has substantially harmed FRI's business. (Id.)

         In response to FRI's letter, ORI filed a Complaint for Declaratory Judgment, which resulted in FRI responding with Counterclaims on May 28, 2015. (ECF No. 1, 24.) ORI contends that the studies it relied upon never mentioned what grade of glucomannan was used and that Lipozene contains the same active ingredients as the products used in the aforementioned studies. (Non-Retained Expert Witness Designations (“Witness Designations”) 3:25-4:1-2, ECF. No. 220-5, Ex. 1.) Further, ORI takes the position that “Propol is nothing more than a trade mark” under which Shimizu sells glucomannan. (Witness Designations 4:24-25.)

         In this case, ORI designated three non-retained expert witnesses-Brian Salerno, Henny den Uijl, and Jim Ayres-to testify on various matters involved in the case. Mr. Salerno is the President of Nutralliance, the raw-material supplier of konjac glucomannan used for Lipozene. (ORI's Opp'n 5:8-16.) Mr. den Uijl is ORI's manager and has had experience in horticulture. (Id. at 4:9-23.) And Mr. Ayres was the account manager for ORI when he worked for Natural Alternatives International, Inc. (“NAI”), but after he left NAI, he continued to work with ORI as their global sales manager. (Id. at 4:24-5:7.)

         Although none of the witnesses has educational qualifications to testify as an expert, ORI contends that each is qualified to testify as an expert witness because of his experience. (ORI's Opp'n 7:15-18.) In response, FRI argues that ORI fails to meet its burden of showing that the non-retained experts' testimony is admissible. (FRI's Reply 2:9-11, ECF No. 233.) While FRI concedes that witnesses do not need to be qualified through education alone, FRI maintains that ORI fails to meet its burden of demonstrating admissibility. (Id. at 3:1-8.) Further, FRI argues that ORI fails to demonstrate that the expert witnesses are qualified, their testimony is relevant, or that their methods are reliable. (Id. at 4:15-17.)


         Federal Rule of Evidence 702 governs the admissibility of expert witnesses. Expert witnesses can testify to “scientific, technical, or other specialized knowledge” that will assist the “trier of the fact [in] understand[ing] the evidence or to determine a fact in issue.” Fed.R.Evid. 702.

         Expert testimony is admissible pursuant to Rule 702 if it is both relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Evidence is relevant when it has “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. Reliability requires that an expert's testimony “have a reliable basis in the knowledge and experience of his discipline.” Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir. 2014) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)).

         The inquiry into the admissibility of an expert witness' testimony does not “require a court to admit or exclude evidence based on its persuasiveness.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011). A trial court will not weigh the correctness of an expert witness, rather the court must determine if the expert's testimony is reliable. Advisory Committee Notes to Rule 702, 2000 Amendments (proponents do not have show by the “preponderance of the evidence that the assessments of their experts are to correct, they only have to demonstrate to the judge by a preponderance of evidence that their opinions are reliable . . . . the requirement of reliability is lower than the merits standard of correctness”) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)).

         A witness is qualified to give expert testimony by her “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. If an expert witness is qualified through her experience, the offering party must explain how that experience led to the expert opinion, why the experience is sufficient, and how the experience was reliably applied to the facts. Advisory Committee Notes to Rule 702, 2000 Amendments; see also Kumho Tire, 526 U.S. at 151 (“[I]t will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a ...

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