Thorne Research et al v. Atlantic Pro-Nutrients
MEMORANDUM DECISION and Order Denying Plaintiffs' 270 Motion in Limine to Exclude Opinion Regarding Microsoft Access Database. Signed by Judge Ted Stewart on 2/9/2018. (jwt)
IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF UTAH
THORNE RESEARCH, INC. and SOFTGEL
MEMORANDUM DECISION AND ORDER
DENYING PLAINTIFFS’ MOTION IN
LIMINE TO EXCLUDE OPINION
REGARDING MICROSOFT ACCESS
CASE NO. 2:13-CV-784 TS
Judge Ted Stewart
This matter is before the Court on Plaintiffs’ Motion In Limine to Exclude Opinion
Regarding Usage of Microsoft Access Database. Plaintiffs Thorne Research, Inc. and Softgel
Formulators , Inc. (collectively “Thorne”) are seeking to exclude Xymogen from arguing,
producing evidence, or “eliciting testimony from Dr. Glenn D. Prestwich regarding the usage of
a Microsoft Access database for scientific research (such as that used by the inventor of the ‘888
Patent), and whether such usage is standard or acceptable practice.” 1 For the following reasons,
the Court denies the Motion.
STANDARD OF REVIEW
“In determining whether expert testimony is admissible, the district court generally must
first determine whether the expert is qualified ‘by knowledge, skill, experience, training, or
education’ to render an opinion.” 2 “[W]here such testimony’s factual basis, data, principles,
methods, or their application are called sufficiently into question . . . the trial judge must
Docket No. 270, at 1.
United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (quoting Fed. R. Evid.
determine whether the testimony has a reliable basis in the knowledge and experience of the
relevant discipline.” 3
In his expert report, Dr. Prestwich states that he is “not familiar with the use of a
Microsoft Access database to record experiments.” 4 Dr. Prestwich opines that “it would have
been quite unusual for a research scientist engaged in potentially novel, non-obvious, and useful
discoveries that would characterize an invention to use such a system.” 5 This opinion is based on
Dr. Prestwich’s belief that “such a system could be more vulnerable to tampering that would not
be possible in a hardbound, handwritten laboratory notebook.” 6 Dr. Prestwich states that “it was
the accepted and common practice to maintain a hardbound (not spiral bound) notebook with
handwritten entries in ink in order to verify authenticity of results and timelines.” 7 Dr. Prestwich
bases this conclusion on his experience at universities and the private sector. 8
Thorne seeks to exclude this testimony on a number of grounds. First, Thorne argues that
this testimony is not relevant. However, as Xyomgen correctly points out, testimony on this
subject is directly relevant to its claim that the ‘888 Patent is invalid.
Thorne next argues that Dr. Prestwich is not qualified to opine on the use of a Microsoft
Access database for research purposes. The Court disagrees. Dr. Prestwich is sufficiently
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (internal quotation marks
Docket No. 308 Ex. A ¶ 83.
Id. ¶ 82.
qualified, based on his training and experience, to testify about standard laboratory notebook
procedures and whether the use of a Microsoft Access database comports with standard practice.
Thorne next argues that this testimony should be excluded because it lacks a sufficient
basis. For substantially the same reasons already stated, the Court disagrees. Dr. Prestwich’s
report clearly identifies the basis for his opinions.
Finally, Thorne argues that such testimony will unduly prejudice the jury. Thorne is
concerned that “the jury may erroneously rely on Dr. Prestwich’s testimony as a suggestion of
tampering of the inventive documents.” 9 Thorne’s concern is moderated by Dr. Prestwich’s
deposition testimony where he states that he has no evidence that the Microsoft Access database
at issue was tampered with. 10 Thus, there is no risk of undue prejudice.
It is therefore
ORDERED that Plaintiffs’ Motion In Limine to Exclude Opinion Regarding Usage of
Microsoft Access Database (Docket No. 270) is DENIED.
DATED this 9th day of February, 2018.
BY THE COURT:
Judge Ted Stewart
Docket No. 270, at 3.
Docket No. 309 Ex. B at 26:6–9.
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