United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO EXCLUDE
ORI'S NON-RETAINED EXPERT WITNESSES [ECF NO.
Cynthia Bashant United States District Judge
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.)
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.
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.
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. (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. (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.)
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
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.)
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.)
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.
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,
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)).
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 ...