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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 Bash ant 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 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.

         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 DENIES FRI's motion.


         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, including the Walsh and the Kaats Studies, 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.)

         FRI 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.)

         To 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.)


         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 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)).

         A 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' ...

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