Youngevity International, Corp. v. Smith et al

Filing 796

ORDER Denying Motion in Limine Without Prejudice (ECF No. 703 ). Signed by Judge Barry Ted Moskowitz on 10/7/2020. (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Youngevity International, et al.,
Plaintiffs,

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v.

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Todd Smith, et al.,

ORDER DENYING MOTION IN
LIMINE WITHOUT PREJUDICE
[ECF No. 703]

Defendants.

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Case No.: 3:16-cv-704-BTM-JLB

Todd Smith, et al.,
Counterclaim Plaintiffs,

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v.

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Youngevity International, et al.,

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Counterclaim Defendants.

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The Plaintiffs and Counterclaim Defendants moved to limit the expert

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testimony of Dr. Joshua Plant and exclude the Microbac Laboratory tests (EX1003

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and EX1004). (ECF 703.) The Court heard oral argument at the October 6, 2020,

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pretrial conference.

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The Court denies the motion without prejudice.

As discussed at the

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conference, Dr. Plant will testify in front of the Court to establish the scope of his

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trial testimony on November 23, 2020. Any purported prejudice can be addressed
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3:16-cv-704-BTM-JLB

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by discovery, which the parties may petition the Court to reopen on a limited basis

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if needed.

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As for the Microbac tests, Rule 703 provides that:

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An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in
the particular field would reasonably rely on those kinds of facts or data
in forming an opinion on the subject, they need not be admissible for
the opinion to be admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the
jury only if their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.

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Fed. R. Evid. 703. Dr. Plant bases his opinion (at least partially) on the Microbac

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tests). Rule 703, however, “provides a presumption against disclosure to the jury

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of information used as the basis of an expert's opinion and not admissible for any

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substantive purpose, when that information is offered by the proponent of the

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expert.” Turner v. Burlington N. Santa Fe R. Co., 338 F.3d 1058, 1062 (9th Cir.

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2003) (quoting Committee Notes to 2000 Amendment). Wakaya thus has the

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burden of establishing that the Microbac tests are the kind that a microbiologist

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would reasonably rely on and that their probative value in helping the jury evaluate

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Dr. Plant’s opinion substantially outweighs their prejudicial effect.

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IT IS SO ORDERED.

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Dated: October 7, 2020

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Hano ble Barry Ted Mask .
United Sta. es Distriict Judge
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3:16-cv-704-BTM-JLB