United States District Court, N.D. California
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
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.
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.
PLAINTIFF'S MOTION IN LIMINE NO. 3 RE: LORI
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.
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.
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))).
because Ms. Osterheldt's testimony is not relevant, the
Court GRANTS Plaintiff's motion to exclude Ms. Osterheldt
as a witness.
DEFENDANT'S MOTION IN LIMINE NO. 2 RE: DR.
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.
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.
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.
Court thus GRANTS Defendant's motion to exclude Dr.
Falcone as a witness.
PLAINTIFF'S MOTION IN LIMINE NO. 4 RE: MARK Y.
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. 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.
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