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Racies v. Quincy Bioscience, LLC

United States District Court, N.D. California

January 4, 2020

PHILLIP RACIES, Plaintiff,
v.
QUINCY BIOSCIENCE, LLC, Defendant.

          ORDER ON REMAINING MOTIONS IN LIMINE AND ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL Re: Dkt. Nos. 201, 202, 204, 205, 240, 245

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         Pending before the Court are the parties' remaining motions in limine. Dkt. Nos. 201, 202, 204, 205. At the December 17, 2019 pretrial conference, the Court indicated that it was likely to exclude Defendant's witness Lori Osterheldt and Plaintiff's witness Dr. Patricia Falcone, the subjects of Plaintiff's third motion in limine and Defendant's second motion in limine, respectively. Dkt. No. 244 at 24:1-4. The Court now GRANTS the parties' motions to exclude Ms. Osterheldt and Dr. Falcone, and issues this order explaining its reasoning for the record.

         The Court also directed the parties to submit detailed offers of proof describing the substance of the proffered evidence at issue in Plaintiff's fourth motion in limine and Defendant's first motion in limine, and the purpose for which the parties seek to introduce the evidence. Dkt. No. 244 at 30:25-31:5, 32:22-33:24. Having received the offers of proof, the Court GRANTS Plaintiff's motion to exclude certain testimony by Mark Y. Underwood and GRANTS IN PART AND DENIES IN PART Defendant's motion to exclude evidence of the FDA investigations.

         I. PLAINTIFF'S MOTION IN LIMINE NO. 3 RE: LORI OSTERHELDT

         Defendant seeks to introduce Ms. Osterheldt as a fact witness and elicit testimony about her “personal experience as to the purchase and use of Prevagen.” Dkt. No. 214 at 4. Plaintiff moved in limine to preclude Defendant from offering her testimony at trial, because Defendant allegedly did not timely disclose her, and her “so-called ‘satisfied customer' testimony [ ] is routinely excluded as irrelevant in consumer protection cases.” Dkt. No. 201 at 1.

         First, the Court finds that Defendant timely disclosed Ms. Osterheldt. Plaintiff argues that Defendant did not disclose Ms. Osterheldt as a witness until November 19, 2019, and therefore did not amend its disclosures in a timely manner as required under Rule 26(e)(1). Dkt. No. 201 at 1- 2. However, Defendant did not learn of Ms. Osterheldt until November 12, 2019, when Plaintiff's counsel provided Defendant with the names of the eight opt-outs from the class, which included Ms. Osterheldt. Dkt. No. 214-2, Ex. 2. The Court finds that a one-week difference between the time Defendant learned of Ms. Osterheldt and its supplementation of its disclosures is timely, and therefore exclusion is not warranted under Rule 37.

         However, Defendant has failed to show how Ms. Osterheldt's proffered testimony is relevant. The inquiry for claims under the California consumer protection statutes (CLRA, UCL, and FAL) is whether the reasonable consumer is likely to be deceived. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)). “Whether consumers were satisfied with the product is irrelevant.” Rikos v. Procter & Gamble Co., 799 F.3d 497, 507 (6th Cir. 2015) (citing McCrary v. Elations Co., LLC, No. EDCV 13-00242 JGB OP, 2014 WL 1779243, at *14 (C.D. Cal. Jan. 13, 2014)). The focus is on “the actions of the defendants, not on the subjective state of mind of the class members.” McCrary, 2014 WL 1779243, at *14. Therefore, Ms. Osterheldt's “personal experience as to the purchase and use of Prevagen” is irrelevant, as it has no probative value on the central question of whether Defendant's representations about Prevagen's benefits were false and misleading. See Forcellati v. Hyland's, Inc., No. CV 12-1983-GHK MRWX, 2014 WL 1410264, at *9 (C.D. Cal. Apr. 9, 2014) (“If Plaintiffs' allegations are proven true, Defendants' representations about the products' effectiveness would constitute false advertising ‘even though some consumers may experience positive results.'” (quoting FTC v. Pantron I Corp., 33 F.3d 1088, 1100 (9th Cir. 1994))).

         Accordingly, because Ms. Osterheldt's testimony is not relevant, the Court GRANTS Plaintiff's motion to exclude Ms. Osterheldt as a witness.[1]

         II. DEFENDANT'S MOTION IN LIMINE NO. 2 RE: DR. PATRICIA FALCONE

         Defendant's second motion in limine seeks to preclude Dr. Falcone for similar reasons as Plaintiff's third motion in limine, discussed above. Specifically, Defendant contends that Plaintiff's failure to disclose Dr. Falcone until the eve of trial was “neither harmless nor justified” under Rule 37. Dkt. No. 205 at 4. Further, Defendant argues that Dr. Falcone's testimony would be “duplicative” of Plaintiff's testimony and irrelevant. Id. at 4-5.

         Here, the Court agrees that Plaintiff did not timely disclose Dr. Falcone and did not demonstrate that the failure to do so was substantially justified or harmless. Under Rule 37, if a party fails to “provide information or identify a witness as required by Rule 26(a) or (e), ” then the party is not allowed to use that information or witness at trial, “unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Plaintiff's counsel asserts that counsel did not learn of Dr. Falcone until August 30, 2019. Dkt. No. 210 at 1; Dkt. No. 210-1 ¶ 2. But counsel provides no explanation as to why counsel failed to disclose or otherwise notify Defendant of Dr. Falcone until November 5, 2019, more than two months later. Because the Court finds Dr. Falcone's disclosure unjustifiably late, exclusion of her testimony is warranted under Rule 37.

         Even were the Court to find that Dr. Falcone was timely disclosed, the Court would still exclude Dr. Falcone's testimony as irrelevant. Plaintiff argues that Dr. Falcone's testimony is “relevant to the materiality of Quincy's Brain Health Benefit representations.” Dkt. No. 210 at 1. Plaintiff seeks testimony from Dr. Falcone about “her purchase of Defendant's Prevagen, ” including the reasons “why she purchased Prevagen, what she relied upon in making her purchase decision, and how much she paid for the Prevagen.” Id. at 4 (emphasis removed and quotations omitted). Her testimony purportedly “supports the ‘materiality' requirement under the CLRA and provides an example of another Class member and her purchasing process.” Id. However, materiality is judged by the effect on a “reasonable consumer.” Falk v. Gen. Motors Corp., 496 F.Supp.2d 1088, 1095 (N.D. Cal. 2007) (citing Consumer Advocates v. Echostar Satellite Corp., 113 Cal.App.4th 1351, 1360 (2003)); see also In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litigation, 758 F.Supp.2d 1077, 1095 (S.D. Cal. 2010) (“Information is material if its disclosure would have caused a reasonable consumer to behave differently.”). Therefore, Dr. Falcone's testimony as to why she purchased Prevagen and what she relied upon in making her purchase is irrelevant.

         The Court thus GRANTS Defendant's motion to exclude Dr. Falcone as a witness.[2]

         III. PLAINTIFF'S MOTION IN LIMINE NO. 4 RE: MARK Y. UNDERWOOD[3]

         Plaintiff's fourth motion in limine seeks to preclude Defendant from having Mr. Underwood, the Chief Operating Officer and founder of Quincy, testify about scientific articles and documents for which Mr. Underwood has been listed as the sponsoring witness.[4] Dkt. No. 202 at 3-5. According to Plaintiff, Mr. Underwood may not give his opinion about these scientific articles, as he is not an expert witness. Id. at 3-5. In addition, Plaintiff also seeks to exclude articles that were “never cited by or relied upon by Defendant's experts.” Id. at 3-5.

         According to Defendant's offer of proof, Defendant intends to question Mr. Underwood about “the literature and articles Quincy researched and relied on in forming its decision with respect to the labeling claims at issue in this action.” Dkt. No. 243 at 2. Defendant lists thirty exhibits for which Mr. Underwood is the sponsoring witness and, without describing any of the exhibits in any detail, asserts that the documents “relate to the use of apoaequorin (“AQ”), an active ingredient of Prevagen as it developed the product.” Id.; see Dkt. No. 243-1, Ex. A. Defendant claims that Mr. Underwood should be allowed to testify about these documents “as ...


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