Blaszkowski et al v. Mars Inc. et al

Filing 580

NOTICE by Natura Pet Products, Inc. re 552 Notice (Other), 548 Notice (Other), 549 Notice (Other), 551 Notice (Other) Evidentiary Objections (Giel, Michael)

Blaszkowski et al v. Mars Inc. et al

Doc. 58

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21221-CIV-ALTONAGA/BROWN RENEE BLASZKOWSKI, et al., individually and on behalf of others similarly situated, Plaintiffs, vs. MARS, INCORPORATED, et al., Defendants. ___________________________________ EVIDENTIARY OBJECTIONS BY NATURA PET PRODUCTS, INC. TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION, SUPPORTING DECLARATIONS AND EXHIBITS ATTACHED THERETO I. OBJECTIONS TO DEPOSITION OF PATRICIA DAVIS [D.E. 548-2 AND D.E. 552-3 (EXHIBIT C TO DECLARATION OF PATRICK KEEGAN, DATED NOVEMBER 14, 2008)] A. Entire Deposition is Hearsay As Offered by Plaintiff Herself - Natura Pet

Products, Inc. ("Natura") hereby objects to plaintiff's use of the Deposition of Patricia Davis, dated September 24, 2008, in its entirety as hearsay. Under Federal Rule of Civil Procedure 32 ("Rule 32"), a party is only allowed to use an adverse party's deposition transcript. The only exceptions allowing use of one's own Deposition transcript are when the party is unavailable to testify or when it is used for impeachment purposes or other purposes expressly allowed by the Federal Rules of Evidence. Because Patricia Davis' Deposition is offered without falling under one of these allowable purposes, it is hearsay and should be stricken. See Fed. R. Evid. 802.

Dockets.Justia.com

B.

Excerpt-Specific Objections 1. Page 51:16-52:2

Q. Tell me everything that you can remember about the signs that you saw advertising Natura products. A. Something about there's nothing in here you wouldn't want to eat yourself, it's like it's human quality food, something to that effect. Because I remember thinking if this is human food that's in this product, that means that they are getting ­ they're coming through a supplier just like humans do and it's being inspected by whoever inspects human food, like USDA, whoever does that, and, therefore, it's got to be good stuff and no wonder it's so expensive. Natura objects to the above as (i) speculation and (ii) hearsay. See Fed. R. Evid. 602, 802. 2. Page 52:7-19 Q. A. Q. Was it a pre-printed glossy type of manufacturing sign? Yes. Tell me to the best you can remember everything about that sign.

A. Just that it made me want to buy the food, but I didn't want to pay that much money for it. Q. A. Do you remember anything specifically that was written on the sign? Something to do with human food.

Q. Do you remember whether the sign related to a particular brand of Natura's products? A. No.

Natura objects to the above as (i) hearsay, (ii) lacking foundation, and (iii) best evidence rule. See Fed. R. Evid. 802, 602, 1002. 3. Page 57:17-21 Q. Did you talk to anybody at Ocala Breeders & Supply about Natura products before you took the free samples home?

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A. I must have because the one lady encouraged me to get them, but I don't remember the conversation. Natura objects to the above as (i) hearsay (ii) lacking foundation. See Fed. R. Evid. 802, 602. 4. Page 89:14-19 A. I would like for them to be truthful and if they say that it's human grade ingredients in the package, it should be human grade. Human grade to me means it's inspected by the same people and bought from the same suppliers as you would feed it to yourself or your kids. Natura objects to the above as (i) hearsay, (ii) lacking foundation, (iii) improper lay opinion, and because (iv) the probative value is outweighed by danger of potential prejudice, confusion, or misleading. See Fed. R. Evid. 802, 602, 701, 403. II. OBJECTIONS TO DEPOSITION OF PETER ATKINS [DE 549-2 AND DE 552-3 (EXHIBIT B TO DECLARATION OF PATRICK KEEGAN, DATED NOVEMBER 14, 2008)] Plaintiffs do not cite to the correct Deposition Transcript page numbers in their Class Certification Motion. Some of the citations to the Deposition of Peter Atkins cite to the

Deposition Transcript page number, while the majority of the citations refer to the Docket Entry page number. This creates confusion in trying to determine what testimony is actually being cited and could mislead the Court. See Fed. R. Evid. 403. To aid the Court in ruling on objections made herein, the deposition transcript page number will be listed first and the page cited in the Class Certification Motion, if different, will be included in parentheses. A. Excerpt-Specific Objections

1. Page 156:6-157:17 (D.E. 549-2 p. 149:6-150:17) Q. I notice in Paragraph 2, starting about two-thirds of the way down of the first line, the statement is made that, "We use only ingredients you'd eat yourself." Correct? A. Yes, sir.

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Q. And it goes on to say "quality meats, whole grains, fresh fruits and vegetables, and complete vitamin and mineral supplements." And I think I've seen representations by Natura in other advertising that ­ well, it's here too, excuse me. Under "Quality," "the highest quality human-grade pet food ingredients" are utilized in your products, correct? A. That has been ­

Ms. Caverly: I'll object as compound. I'm not sure which phrase or discussion you are asking him about. Mr. Nield: Well, we can take them ­ we can take them individually then. By Mr. Nield: Q. Let's start with the one where you indicate that "We only use ingredients you'd eat yourself." Meaning that the pet owner, I'm assuming, would eat those ingredients themselves, correct? A. The ingredients that we use, yes.

Q. And then going down to that section where it ­ titles "Quality," it says "because we only use the highest quality human-grade pet food ingredients in our dog and cat foods, we apply the highest quality manufacturing guidelines to our production process." Do you see that? A. Yes.

Q. Natura represents here and I think elsewhere that it uses human-grade ingredients in its pet food, correct? A. Yes. Here it does, yeah.

Natura objects to the above on best evidence grounds. See Fed. R. Evid. 1002. The document being discussed should be provided. 2. Page 161:3-11 (D.E. 549-2 p. 154:3-11) Q. A. Q. ...Is chicken meal a rendered ingredient? Yes. How is that processed?

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A. Chicken meal is basically the meat and some bone and cartilage material taken from the chicken. It's generally off of backs and necks that come to the processing plant. The quality meat that's on those products are taken from the bone that didn't make it to the grocery store or to Colonel Sanders. Natura objects to the above as incomplete and, therefore, its probative value is outweighed by danger of potential prejudice, confusion, or misleading. See Fed. R. Evid. 403. The immediately following testimony should be considered and reads: A. ... It's processed, consolidated and sold to us, it could be sold to us for our pet food. Or if it wasn't sold to us, it could be sold to somebody who makes hot dogs or sandwich meats, that kind of an outlet. III. OBJECTIONS TO DECLARATION OF JEFFREY B. MALTZMAN AND ATTACHED EXHIBIT [DE 551-2] Natura hereby objects to the Declaration of Jeffrey B. Maltzman executed on November 16, 2008, and exhibit attached thereto. A. 1. Specific objections

Paragraph 9: Defendant Natura Pet Products Inc.'s counsel Kristen Caverly acknowledged to me during an oral conversation in San Diego that her client sells approximately $100 million in pet food and pet snacks per year. She has also admitted to me that her client sells their food in all 50 states, including in Florida through a network of distributors.

Natura objects to the above as (i) hearsay and (ii) privileged settlement discussion. See Fed. R. Evid. 802, 408. 2. Paragraph 10: The printout from Brighton's website (the marketing agency for Defendant Natura) attached as Exhibit "A" to Plaintiff's Motion for Class Certification is a true and correct copy of Brighton's "Case study" of their work for Natura as it appears on their website as of November 17, 2008. Natura objects to the above as (i) irrelevant (ii) hearsay (iii) lacking foundation. See Fed. R. Evid. 402, 802, 602.

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3.

Exhibit "A" attached to the Declaration of Jeffrey B. Maltzman: Natura objects to the exhibit in its entirety because (i) its contents are unauthenticated and

as (ii) irrelevant (iii) hearsay. See Fed. R. Evid. 901, 402, 802. McGUIREWOODS LLP By: s/Michael M. Giel Jeffrey S. York Florida Bar No. 0987069 Michael M. Giel Florida Bar No. 0017676 50 N. Laura Street, Suite 3300 Jacksonville, Florida 32202 [phone] [phone] (fax) [e-mail] [e-mail]

and HENDERSON, CAVERLY, PUM & CHARNEY LLP Kristen E. Caverly Admitted Pro Hac Vice Robert C. Mardian III Admitted Pro Hac Vice Post Office Box 9144 Rancho Sante Fe, California 92067 [phone] [phone] (fax) [e-mail] [e-mail] ATTORNEYS AND TRIAL COUNSEL FOR DEFENDANT NATURA PET PRODUCTS, INC.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 23, 2008, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the counsel so indicated on the attached Service List. s/Michael M. Giel Attorney

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CERTIFICATE OF SERVICE RENEE BLASZKOWSKI, ET AL., VS. MARS, INCORPORATED, ET AL. Case No. 1:07-21221-CIV-ALTONAGA/TURNOFF SERVICE LIST

Catherine J. MacIvor, Esquire Jeffrey Eric Foreman, Esquire Jeffrey Bradford Maltzman, Esquire Darren W. Friedman, Esquire Bjorg Eikeland MALTZMAN FOREMAN PA One Biscayne Tower 2 South Biscayne Boulevard, Suite 2300 Miami, FL 33131-1803 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiffs Patrick N. Keegan, Esquire Jason E. Baker, Esquire KEEGAN & BAKER, LLP 4370 La Jolla Village Drive, Suite 640 San Diego, CA 92122 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Plaintiffs John B.T. Murray, Jr., Esquire SQUIRE, SANDERS & DEMPSEY L.L.P. 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401-6198 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants PETCO Animal Supplies Stores, Inc., PetSmart, Inc., Wal-Mart

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Stores, Inc., Target Corporation and Meijer, Inc. Rolando Andres Diaz, Esquire Peter S. Baumberger, Esquire KUBICKI DRAPER 25 W. Flagler Street Penthouse Miami, FL 33130-1712 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Defendant Pet Supermarket, Inc. Lonnie L. Simpson, Esquire S. Douglas Knox, Esquire DLA PIPER LLP 100 N. Tampa Street Suite 2200 Tampa, Florida 33602-5809 [e-mail] [e-mail] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund Alexander Shaknes, Esquire DLA PIPER LLP 1251 Avenue of the Americas New York, New York 10020-1104 [e-mail] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund Hugh J. Turner, Jr., Esquire AKERMAN SENTERFITT 350 E. Las Olas Boulevard Suite 1600 Fort Lauderdale, FL 33301-2229 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants Publix Super Markets, Inc and H.E. Butt Grocery Co.

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Gary L. Justice, Esquire Gail E. Lees, Esquire Omar Ortega, Esquire DORTA AND ORTEGA, P.A. Douglas Entrance 800 S. Douglas Road, Suite 149 Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Mars, Incorporated, Mars Petcare U.S., and Nutro Products, Inc. Benjamine Reid, Esquire Olga M. Vieira, Esquire CARLTON FIELDS, P.A. 100 S.E. Second Street, Suite 4000 Bank of America Tower at International Place Miami, Florida 33131-9101 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Colgate-Palmolive Company and Hill's Pet Nutrition, Inc. John J. Kuster, Esquire James D. Arden, Esquire SIDLEY AUSTIN LLP 787 Seventh Avenue New York, NY 10019 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Colgate-Palmolive Company and Hill's Pet Nutrition, Inc. Kara L. McCall, Esquire SIDLEY AUSTIN LLP One South Dearborn Chicago, Illinois 60603 Telephone: [phone] [e-mail] Attorneys for Defendants Colgate-Palmolive Company and Hill's Pet Nutrition, Inc.

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Marcos Daniel Jiménez, Esquire Robert J. Alwine II, Esquire KENNY NACHWALTER, P.A. 1100 Miami Center 201 South Biscayne Boulevard Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Safeway, Inc. and The Stop & Shop Supermarket Company LLC Sherril M. Colombo, Esquire COZEN O'CONNOR Wachovia Center, Suite 4410 200 South Biscayne Boulevard Miami, FL 33131 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Del Monte Foods, Co. Richard Fama, Esquire John J. McDonough, Esquire COZEN O'CONNOR 45 Broadway New York, New York 10006 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendant Del Monte Foods John F. Mullen, Esquire COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Del Monte Foods, Co.

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Carol A. Licko, Esquire HOGAN & HARTSON L.L.P. Mellon Financial Center 1111 Brickell Avenue, Suite 1900 Miami, FL 33131 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants Nestlé USA, Inc. and Nestlé Purina Petcare Co. Robert C. Troyer, Esquire HOGAN & HARTSON L.L.P. 1200 17th Street One Tabor Center, suite 1500 Denver, Colorado 80202 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants Nestlé USA, Inc. and Nestlé Purina Petcare Co. Craig A. Hoover, Esquire Miranda L. Berge, Esquire E. Desmond Hogan, Esquire HOGAN & HARTSON L.L.P. 555 13TH Street, NW Washington, D.C. 20004 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Nestlé USA, Inc. and Nestlé Purina Petcare Co. Alan G. Greer, Esquire RICHMAN GREER, P.A. Miami Center ­ Suite 1000 201 South Biscayne Boulevard Miami, FL 33131 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants Procter & Gamble Co. and The Iams Co.

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D. Jeffrey Ireland, Esquire Brian D. Wright, Esquire Laura A. Sanom, Esquire FARUKI IRELAND & COX P.L.L. 500 Courthouse Plaza, S.W. 10 North Ludlow Street Dayton, Ohio 45402 [e-mail] [e-mail] [e-mail] Attorneys for Defendant Procter & Gamble Co. and The Iams Co. Robin L. Hanger, Esquire SQUIRE, SANDERS & DEMPSEY L.L.P. 200 S. Biscayne Boulevard 40th Floor Miami, Florida 33131-2398 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants PETCO Animal Supplies Stores, Inc. Ralph G. Patino, Esquire Dominick V. Tamarazzo, Esquire Carlos B. Salup, Esquire PATINO & ASSOCIATES, P.A. 225 Alcazar Avenue Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Defendants Pet Supplies "Plus" and Pet Supplies Plus/USA, Inc. Robert Valadez, Esquire Javier Thomas Duran, Esquire SHELTON & VALADEZ, P.C. 600 Navarro, Suite 500 San Antonio, Texas 78205 Telephone: [phone] Facsimile: [phone] [e-mail]

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[e-mail] Attorneys for Defendant H.E. Butt Grocery Co. Craig P. Kalil, Esquire Joshua D. Poyer, Esquire ABALLI, MILNE, KALIL & ESCAGEDO, P.A. 2250 Sun Trust International Center One Southeast Third Avenue Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants New Albertson's Inc. and Albertson's LLC W. Randolph Teslik, Esquire Andrew Dober, Esquire AKIN GUMPSTRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, NW Washington, D.C. 20036 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants New Albertson's Inc. and Albertson's LLC Jason Joffe, Esquire SQUIRE SANDERS & DEMPSEY, LLP 200 South Biscayne Boulevard Suite 4000 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Meijer, Inc.

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