Nutrimatix Inc. v. Xymogen, Inc.

Filing 106

ORDER denying 102 Motion to Strike. Signed by Judge Roy B. Dalton, Jr. on 2/13/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NUTRIMATIX INC.,
Plaintiff,
v.

Case No. 6:15-cv-790-Orl-37GJK

XYMOGEN, INC.,
Defendant.
ORDER
This cause is before the Court on the following:
1.

Defendant’s Proposed Jury Instruction Regarding the Requisite Federal
Drug Act Nutritional Testing Method for FDA Violation Claims, submitted to
the Court on February 10, 2017;

2.

Defendant’s Notice of

Filing Authority Regarding the Necessary

Compliance with the Federal Drug Act’s Requirements for Sampling and
Testing (Doc. 100), filed February 12, 2017;
3.

Defendant’s Notice of

Filing Authority Regarding the Necessary

Compliance with the Federal Drug Act’s Requirements for Sampling and
Testing (Doc. 101), filed February 12, 2017;
4.

Defendant’s Motion to Strike Expert Testimony of Richard Rampell and
Incorporated Memorandum of Law (Doc. 102), filed February 12, 2017; and

5.

Plaintiff’s Memorandum in Opposition to Defendant’s Ore Tenus Motion to
Exclude (Doc. 103), filed February 12, 2017.

The Court issues the instant summary Order to provide the parties with rulings on
critical pending issues prior to closing arguments:
1.

Upon review of the authority submitted by Defendant in support of its
proposed jury instruction on FDA sampling and testing requirements (“FDA
Regulation Instruction”), the Court finds that the FDA Regulation
Instruction is an accurate statement of the law. As such, the Court elects to
include the FDA Regulation Instruction in its final instructions to the jury.

2.

Upon consideration, Defendant’s motion to strike the testimony of Plaintiff’s
damages expert, Richard Rampell, is due to be denied. Importantly, the
Court finds that: (1) Defendant has failed to demonstrate that it was
prejudiced by any of the omissions alleged in its motion to strike; and
(2) Defendant’s cross-examination of Plaintiff’s witnesses sufficiently raised
jury questions on credibility and reliability with regard to the allegedly
undisclosed information referenced in Defendant’s motion to strike.

Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Plaintiff’s objections to Defendant’s proposed FDA Regulation Instruction
are OVERULLED.

2.

Defendant’s Motion to Strike Expert Testimony of Richard Rampell and
Incorporated Memorandum of Law (Doc. 102) is DENIED.

DONE AND ORDERED in Chambers in Orlando, Florida, on February 13, 2017.

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Copies:
Counsel of Record

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