United States District Court, S.D. California
ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE THE
REPORT & TESTIMONY OF DR. LAURA LERNER [ECF NO.
Cynthia Bash ant 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 the Report
and Testimony of Dr. Laura Lerner, an expert witness for ORI,
arguing that Dr. Laura Lerner is unqualified and her
testimony is irrelevant and unreliable. 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 DENIES 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, including the Walsh and the Kaats
Studies, 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
retained Dr. Thomas Wolver as an expert witness to testify on
whether ORI can rely on the scientific studies of glucomannan
to make certain representations about Lipozene. (Wolver
Report ¶ 6, ECF No. 189-3.) In his report, Dr. Wolver
opines that Lipozene has a different effect on the body than
Propol clinical strength (“Propol CS”). (Wolver
Report ¶ 10.) Therefore, Dr. Wolver believes it is
“scientifically inappropriate” for ORI to use the
Walsh and the Kaats Studies to substantiate the effectiveness
of Lipozene. (Wolver Report ¶ 11.) Further, Dr. Wolver
opines that the ingredients used in Lipozene “likely
has little or no benefit for weight loss.” (Wolver
Report ¶ 12.)
rebut Dr. Wolver's testimony, ORI retained Dr. Lerner as
an expert witness. (Lerner Report, ECF No. 189-5.) Dr.
Lerner's report first pointed to the fact that neither
the Kaats nor Walsh Study purported to use Propol CS. (Lerner
Report 3.) Dr. Wolver assumed that Propol CS was used, but
has no actual knowledge of what variation was used in the
studies. (Lerner Report 3, 9-10.) Dr. Lerner rebuts Dr.
Wolver's conclusion that Lipozene is less effective than
Propol by analyzing the results of various peer-reviewed
studies. (Lerner Report 13.) Dr. Lerner concludes that there
is no basis in either scientific literature or lab testing
results to support Dr. Wolver's conclusion that Lipozene
is less effective than the glucomannan tested in the Kaats or
the Walsh Studies. (Lerner Report 3, 13.)
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 to show
by a “preponderance of the evidence that the
assessments of their experts are 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. The qualifications for
expert witnesses under Rule 702 should be construed broadly.
See Thomas v. Newton Int'l Enters., 42 F.3d
1266, 1269 (9th Cir. 1994). It is an abuse of discretion for
a court to disqualify an expert witness that is generally
qualified. Id. (holding court abused discretion by
narrowly construing expert witness' ...