Thorne Research et al v. Atlantic Pro-Nutrients

Filing 197

MEMORANDUM DECISION and order Sustaining 170 Xymogens Evidentiary Objections in Response to Plaintiffs Reply Memorandum. Signed by Judge Ted Stewart on 1/30/17. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER SUSTAINING XYMOGEN’S
EVIDENTIARY OBJECTIONS IN
RESPONSE TO PLAINTIFFS’ REPLY
MEMORANDUM

THORNE RESEARCH, INC. and
SOFTGET FORMULATORS, INC.,
Plaintiffs,
v.
ATLANTIC PRO-NUTRIENTS, INC. d/b/a
XYMOGEN,

Case No. 2:13-CV-784 TS

Defendant.

District Judge Ted Stewart

This matter is before the Court on Defendant’s Evidentiary Objections in Response to
Plaintiffs’ Reply Memorandum. For the reasons set forth below, the Court will sustain the
objections and disregard Mr. Rader’s expert opinions.
I. BACKGROUND
On January 29, 2016, Thorne hired Eurofins Scientific, Inc. (“Eurofins”) to perform a
microscopic study, among other things. 1 Thorne went back to Eurofins to obtain a second
analysis on July 28, 2016. 2 Xymogen objected to the analyses under Federal Rule of Evidence
702, among other things. In an Order dated September 26, 2016, the Court gave the parties time
to engage in limited expert discovery on the issue of crystallinity in accordance with Rule 702
prior to the Court’s decision of Thorne’s Motion for Partial Summary Judgment. Thorne
designated Kent Rader, a Business Unit Manager at Eurofins, produced an expert report, and

1

Docket No. 156-14, at 3.

2

Docket No. 168-1, at 1.

1

made Mr. Rader available for deposition. Xymogen then renewed its objection to the
admissibility of the analyses, and specifically to Mr. Rader’s qualifications.
II. DISCUSSION
The Court has a gatekeeping duty to ensure that an expert is qualified, that an expert’s
methods are reliable, that expert testimony is based on sufficient facts or data, and that an
expert’s methods were reliably applied to the facts of the case. 3 The Court has discretion to
exercise its Daubert gatekeeping role at summary judgment by excluding a proffer of expert
testimony that is clearly deficient. 4
When considering expert qualifications under Rule 702, the Court looks not to the
expert’s qualifications in general, but to whether an expert has sufficient “skill, experience or
knowledge” in the specific field in which the expert is offering testimony. 5 The qualifications
must be sufficient “to make it appear that his opinion would rest on substantial foundation.” 6 In
addition, “[w]hether a witness can parrot the results of a model does not mean that he is qualified
to explain how [a] model works or to opine on the statistical validity or interpretation of the
results.” 7

3

See Fed. R. Evid. 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
589 (1993).
4

See MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 913 (Fed. Cir. 2012) (granting
summary judgment after excluding an expert’s testimony under Daubert); see also Norris v.
Baxter Healthcare Corp., 397 F.3d 878, 886 (10th Cir. 2005) (finding that a district court “did
not abuse its discretion in exercising its Daubert gatekeeping role” by excluding expert
testimony at summary judgment).
5

Graham v. Wyeth Labs., Div. of Am. Home Prods. Corp., 906 F.2d 1399, 1408 (10th
Cir. 1990) (quoting Bridger v. Union Railway Co., 355 F.2d 382, 387 (6th Cir. 1966)).
6

Id.

7

LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004).

2

Thorne retained Mr. Rader to offer opinions regarding whether the accused products
contain visible crystals. Mr. Rader forwarded samples of the accused products to another entity,
Alkemist Laboratories, with instructions to perform a microscopic analysis at a certain
magnification, and later discussed the tests with lab technicians. 8 The results of the microscopic
analyses showed no crystals using a light microscope with a polarizing filter and a paxcam
digital camera at magnifications of 600X and 1000X.
Xymogen argues that Mr. Rader’s opinion regarding crystallinity should be excluded
under Federal Rule of Evidence 702 because Mr. Rader is not an expert in microscopy and lacks
knowledge about the methodology and procedures used by Alkemist Laboratories. The Court
agrees. Mr. Rader is a chemist, not a microscopist. By his own admission, Mr. Rader has no
expertise in microscopy. 9 He did not perform this microscopic test nor did he supervise the
testing. 10 Mr. Rader simply ensured that the test results from Alkemist were correctly transposed
into the Eurofins report. 11 Mr. Rader never attempted to validate the results of Alkemist’s
testing. 12 In his deposition, Mr. Rader stated that he did not know how Alkemist removed its
sample from the softgel and stated that he “would have to defer to the experts” to explain why a
polarized filter was used. 13 When asked how one would reach a conclusion regarding the
presence of crystals, Mr. Rader responded, “I would have to ask the—an expert on that.” 14
8

Docket No. 185-1, at 52.

9

Id. at 12–13.

10

Id. at 51.

11

Id. at 58.

12

Id. at 76, 80.

13

Id. at 112–13.

14

Id. at 114.
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Mr. Rader’s testimony implies that the process of preserving a sample, using a
microscope with appropriate lighting and filters, photographing the sample, and reaching a
determination regarding whether crystals are visible requires some degree of expertise. 15 Mr.
Rader does not have this expertise. 16 Therefore, Mr. Rader is not in a position to opine about the
validity or interpretation of the test’s results.
Xymogen persuasively cites Petersen v. Daimler Chrysler Corp. 17 In that case, a
testifying expert attempted to base his opinions in part on a computer program analysis
performed by a non-testifying colleague. 18 Although the expert was familiar with the type of
analysis at issue, he could not provide the input data used to construct the report, could not
confirm that the report was accurate, and could not attest to the reliability of the methods used. 19
Judge Campbell found that the expert did “not have the requisite familiarity, knowledge, or
technical judgment of the methods or reasoning applied . . . to be allowed to present opinions
based on the . . . report to the jury. If [the expert] did so, he would be serving as nothing more
than a mouthpiece” for the individual who prepared the report. 20 The facts of this case are on all
fours with Petersen and the Court finds Judge Campbell’s reasoning persuasive.
Thorne argues that the Court should take into consideration that a microscopic analysis is
not as intricate or controversial as some other expert analyses. While this may be true, the
procedures used still require some degree of expertise. The Court cannot overlook the fact that
15

Id. at 112–14.

16

Id. at 12 (“I’m a chemist, but I’m not a trained microscopist.”).

17

No. 1:06-CV-108-TC, 2011 WL 2491026 (D. Utah June 22, 2011).

18

Id. at *1.

19

Id. at *3.

20

Id. at *5.

4

Thorne has designated an individual with no expertise in microscopy whatsoever, one who
cannot explain the methods employed or speak to the validity of the results. The Court will
therefore exclude Mr. Rader’s opinions regarding crystallinity for purposes of Thorne’s Motion
for Summary Judgment due to Mr. Rader’s lack of qualifications.
III. CONCLUSION
It is therefore
ORDERED that Xymogen’s Evidentiary Objections in Response to Plaintiffs’ Reply
Memorandum (Docket No. 170) is SUSTAINED.
DATED this 30th day of January, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

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