Nutrimatix Inc. v. Xymogen, Inc.

Filing 71

ORDER denying without prejudice 42 Motion in Limine; denying in part 47 Motion in Limine; granting in part and denying in part 62 Motion in Limine; denying without prejudice 63 Motion in Limine. Signed by Judge Roy B. Dalton, Jr. on 11/18/2016. (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.

Plaintiff’s Motion to Exclude Expert Testimony and Incorporated
Memorandum of Law (Doc. 42), filed June 24, 2016;

2.

Defendant’s Response to Plaintiff’s Motion to Exclude Expert Testimony
and Incorporated Memorandum of Law (Doc. 49), filed July 8, 2016;

3.

Defendant’s Daubert Motion and Motion in Limine to Exclude and Strike the
Testimony and Reports of Richard Rampell and Josh Santos and
Incorporated

Memorandum

of

Law

in

Support

(Doc.

47),

filed

June 28, 2016;
4.

Plaintiff’s Opposition to Defendant’s Daubert Motion and Motion in Limine
to Exclude Expert Testimony (Doc. 51), filed July 8, 2016;

5.

Plaintiff’s Omnibus Motion in Limine (Doc. 62), filed October 27, 2016;

6.

Defendant’s Response in Opposition to Plaintiff’s Omnibus Motion in Limine
(Doc. 66), filed November 10, 2016; and

7.

Defendant’s Motion in Limine and Incorporated Memorandum of Law

(Doc. 63), filed October 27, 2016.
On November 17, 2016, the Court held its final pretrial conference and heard oral
argument on several pending motions in this matter. (See Doc. 70.) In accordance with
the Court’s rulings from the bench, it is hereby ORDERED AND ADJUDGED:
1.

Plaintiff’s Motion to Exclude Expert Testimony and Incorporated
Memorandum of Law (Doc. 42) is DENIED WITHOUT PREJUDICE.
Plaintiff may raise appropriate objections to Dr. Henry Fishkind’s testimony
at the time of trial.

2.

Defendant’s Daubert Motion and Motion in Limine to Exclude and Strike the
Testimony and Reports of Richard Rampell and Josh Santos and
Incorporated Memorandum of Law in Support (Doc. 47) is DENIED IN
PART.
a.

To the extent that Defendant requests the exclusion of the testimony
and expert report of Josh Santos, the Motion is DENIED.

b.

The Court otherwise RESERVES RULING on Defendant’s Motion to
exclude the testimony and report of Richard Rampell. The Court will
issue its ruling prior to opening statements.

3.

Plaintiff’s Omnibus Motion in Limine (Doc. 62) is GRANTED IN PART AND
DENIED IN PART.
a.

The Court will permit lay witness Daniel Gulick to give the following
testimony: (1) that he is familiar with Defendant’s quality assurance
and control (“QA/QC”) process ; (2) that based on his review of such
procedures with respect to the production of Plaintiff’s products,

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there was no anomaly in the QA/QC process; and (3) if such
procedures were followed, there is no reason believe that Plaintiff’s
products did not meet the parties’ agreed specifications, state
regulations, or federal regulations (inclusive of U.S. Food and Drug
Administration standards). However, because he did not test the
products, Gulick is not permitted to testify that such products
conclusively complied with the parties’ specifications, state
regulations, or federal regulations. Such testimony is expert
testimony, which Gulick is not qualified to give.
b.

To the extent that Plaintiff seeks to exclude invoices not produced
during the regular discovery period, the Motion is GRANTED.

c.

Defendant is precluded from seeking damages relating to the
nonpayment of the second electrolyte order as such recovery falls
outside the bounds of its Counterclaims.

4.

Defendant’s Motion in Limine and Incorporated Memorandum of Law
(Doc. 63) is DENIED WITHOUT PREJUDICE for failure to comply with the
directives in the Court’s Case Management and Scheduling Order (see
Doc. 17, p. 2 (requiring that all motions in limine be filed in a single motion).)

DONE AND ORDERED in Chambers in Orlando, Florida, on November 18, 2016.

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Copies:
Counsel of Record

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