Vitamins Online v. Heartwise et al

Filing 530

MEMORANDUM DECISION AND ORDER denying 483 Motion in Limine No. 1; granting 484 Motion in Limine No. 2; denying 485 Motion in Limine No. 3; denying 486 Motion in Limine No. 4; and granting in part and denying in part [487 ] Motion in Limine No. 5. Moreover, the court resolves the parties' objections as described herein. And, finally, the parties are to ensure their preparation as the court will move forward with trial, beginning July 16, 2020, whether in person or via videoconference technology. Signed by Judge Dale A. Kimball on 6/24/2020. (eat)

Case 2:13-cv-00982-DAK-JCB Document 530 Filed 06/24/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
VITAMINS ONLINE, INC., a Delaware
corporation,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.
Civil Case No. 2:13-cv-00982-DAK
HEARTWISE, INC., an Oregon
corporation d/b/a NATUREWISE,

Judge Dale A. Kimball

Defendant.

This matter is before the court on Defendant HeartWise, Inc.’s Motion in Limine No. 1 to
Preclude Mr. Stan Smith from Offering Testimony Outside the Scope of His Expert Report per
FRCP 26(a)(2) [ECF No. 483]; Motion in Limine No. 2 to Exclude Late Produced Documents
[ECF No. 484]; Motion in Limine No. 3 to Preclude Norman Howe from Offering Testimony
Outside the Scope of His Expert Report and Other Testimony [ECF No. 485]; Motion in Limine
No. 4 to Exclude Testimony Regarding Injury from Mr. Michael Belch [ECF No. 486]; Motion
in Limine No. 5 to Preclude Mr. Tommy Noonan and Dr. Julian McAuley from Offering
Testimony Outside the Scope of Their Expert Report per FRCP 26(a)(2) [ECF No. 487]; and the
parties’ objections to pre-trial disclosures, including deposition designations and trial exhibits.
On June 17, 2020, the court telephonically held oral argument on Defendant’s motions in limine.
Defendant was represented by Joseph R. Trojan, and Plaintiff was represented by James E.
Magleby, Geoffrey Kris Biehn, Edgar R. Cataxinos, and Yevgen Kovalov. The court took the
motions in limine under advisement. The court considered carefully the memoranda and other

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materials submitted by the parties, as well as the law and facts relating to the motions. Now
being fully advised, the court issues the following Memorandum Decision and Order.
BACKGROUND
Plaintiff Vitamins Online, Inc. (“Vitamins Online”) commenced this action back in 2013,
alleging that Defendant HeartWise, Inc. d/b/a NatureWise (“NatureWise”) had engaged in false
advertising in violation of the Lanham Act. Specifically, Vitamins Online alleged false
advertising based on two types of conduct: (1) manipulating Amazon’s customer review system;
and (2) falsely advertising and misrepresenting the content and characteristics of its green coffee
and garcinia cambogia products (“Ingredients Claims”). Now, after multiple rounds of motions
for summary judgment and nearly seven years of litigating this case, the parties have filed their
pre-trial disclosures, and NatureWise has filed several motions in limine in preparation for the
bench trial, which is set to take place next month.
DISCUSSION
I.

Motions in Limine
NatureWise filed five separate motions in limine. Four of the motions seek to confine the

testimony of Vitamins Online’s experts to their respective expert reports. The remaining motion
seeks to exclude documents that NatureWise argues were inappropriately produced well after the
deadline for doing so. The court will address each motion in turn.
1. Motion in Limine No. 1: Vitamins Online’s Expert Stan Smith
NatureWise moves to preclude Vitamins Online’s economics expert Stan Smith
(“Smith”) from offering testimony at trial beyond the scope of his expert report. Specifically,
NatureWise seeks to prohibit Smith from testifying on causation and damages that are not
presented in his expert report.

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Federal Rule of Civil Procedure 26(a)(2) requires an expert witness to set forth a report
that contains, among other things, “a complete statement of all opinions the witness will express
and the basis and reasons for them” and “the facts or data considered by the witness in forming
them.” Fed. R. Civ. P. 26(a)(2). In this case, Smith offered an expert report on Vitamins
Online’s alleged damages. NatureWise contends, however, that Smith’s calculation of damages
was predicated on various presumptions of injury that the court has rejected in this case.
Furthermore, NatureWise argues that Smith’s report fails to address causation entirely. As such,
NatureWise contends that Smith’s testimony should be circumscribed accordingly.
To start, the court notes that, in his report, Smith explicitly states that his assignment was
“to value the sales revenues by HeartWise subsequent to the unfair competition and false
advertising by defendant HeartWise, d/b/a NatureWise.” Expert Report of Stan V. Smith at 1,
ECF No. 287-15. In light of this articulated purpose, Smith goes on to analyze the revenue that
NatureWise made from the sale of its green coffee and garcinia cambogia products. Id. at 9.
Following that calculation, Smith notes that since he has established NatureWise’s profits, the
burden then shifts to NatureWise to account for any possible deductions. Id. Thus, considering
NatureWise’s arguments in its motion, it seems that Vitamins Online never tasked Smith with
analyzing or establishing causation. The court, however, is apprehensive to grant NatureWise’s
motion. First, although establishing causation does not appear to be the purpose of Smith’s
report, his report necessarily relies on various assumptions which relate to causation. For
example, Smith’s report is based on the assumption that NatureWise is liable for false
advertising—that is, Vitamins Online has established all of the elements of its false advertising
claim, including that NatureWise’s actions caused injury to Vitamins Online. As such, it would

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be improper to preclude Smith from discussing causation entirely, because to do so would result
in him being unable to testify regarding the bases of his opinions.
Second, the relief that NatureWise seeks from its motion appears to be something of a
moving target. In its motion, under the section entitled “RELIEF SOUGHT AND SPECIFIC
GROUNDS FOR THE MOTION,” NatureWise states that it is specifically moving to preclude
Smith from testifying on alleged damages. Def.’s Mot. in Lim. No. 1 at 1, ECF No. 483.
However, NatureWise’s motion goes on to argue that Smith should be precluded from testifying
regarding what caused Vitamins Online’s alleged injury. Id. at 4–10. Given that the valuation of
damages is a separate inquiry from whether a plaintiff has established the injury element of his
false advertising claim, see Mem. Decision and Order at 28–29, ECF No. 444, it is unclear as to
what testimony NatureWise specifically seeks to preclude.
Third, the court disagrees with one of the main premises of NatureWise’s motion—that
Smith’s report is based entirely on the presumptions of injury that this court has rejected. See
Def.’s Mot. in Lim. No. 1 at 1–4. As this court explained in its most recent summary judgment
order, there exists a presumption of injury in false advertising cases involving comparative
advertising or direct competitors in a two-player market. Mem. Decision and Order at 25–28,
ECF No. 444. Yet, in that order, the court determined that neither of those presumptions are
applicable in this case. Id. Here, NatureWise avers that Smith’s report relies wholly on these
presumptions of injury, but the court believes that NatureWise is misconstruing Smith’s report.
Smith’s report merely assumes that Vitamins Online has established all of the elements of its
false advertising claim; the report makes no assertion that that assumption relies exclusively on
one of the presumptions of injury.

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In light of the foregoing analysis, the court is concerned that restricting Smith’s
prospective testimony in the manner requested by NatureWise would be improper and lead to
confusion at trial. As such, the court believes that the most efficient way for NatureWise to
challenge portions of Smith’s testimony would be through raising objections at trial. The court
therefore concludes that NatureWise’s first motion in limine should be denied.
2. Motion in Limine No. 2: Late Produced Documents
NatureWise moves to exclude documents that it alleges Vitamins Online produced well
after the deadline. Specifically, NatureWise moves to exclude documents labeled with bates
numbers VO0025785 through VO0025853, produced by Vitamins Online on February 12, 2020,
and bates numbers VO0025854 through VO0025946, produced by Vitamins Online on March 3,
2020.
Federal Rule of Civil Procedure 37(c)(1) governs situations where a party fails timely to
disclose information. It provides, in relevant part:
Failure to Disclose or Supplement. If a party fails to provide information or identify
a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.
Fed. R. Civ. P. 37(c)(1). When considering whether a violation of Rule 26(a) is justified or
harmless, courts analyze the following four factors: “(1) the prejudice or surprise to the party
against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the
extent to which introducing such testimony would disrupt the trial; and (4) the moving party’s
bad faith or willfulness.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002)
(quoting Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.
1999)).

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In this case, Vitamins Online argues that the four factors stand in favor denying
NatureWise’s motion. In particular, they contend that excluding the documents at issue would
be improper because they were all publicly available prior to production, and many of the
documents merely reflect NatureWise’s own product packaging and website. The court,
however, finds Vitamins Online’s arguments to be without merit and concludes that Vitamins
Online’s late production was neither substantially justified nor harmless. As for the first factor,
the court finds that NatureWise would be prejudiced by permitting Vitamins Online to rely on
the belated documents at trial. Fact discovery in this case concluded over five years ago. Thus,
it would be entirely improper to allow Vitamins Online to continue producing documents years
after the deadline and with trial fast approaching. Moreover, the fact that the documents are
public is of no consequence. The public domain is replete with scores of documents, but that
does not mean that NatureWise should be on perennial notice that any such documents may be
used against it at trial. Rather, “[t]he purpose of the discovery process is to uncover the facts
relevant to the legal claims, Northstar Funding Grp. v. Fed. Deposit Ins. Corp., No.
1:09CV79DAK, 2010 WL 2802438, at *3 (D. Utah July 15, 2010) (unpublished), and then be
able to explore a party’s reliance on such facts. Because Vitamins Online produced the
documents at issue well past the deadline for doing so, NatureWise is prejudiced because it was
precluded from exploring the documents and Vitamins Online’s reliance thereon. Accordingly,
the first factor weighs in NatureWise’s favor.
The second and third factors also weigh in favor of NatureWise’s motion. Given the
excessive tardiness of the production, it would be difficult for NatureWise to cure the prejudice.
In order to properly cure the resulting prejudice to NatureWise, it would likely be necessary to
reopen discovery and allow NatureWise the opportunity to perform discovery on the documents.

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With trial approximately one month away, a discovery reopening would frustrate the entire
timeline of this already longstanding case. Furthermore, trial would undoubtedly be disrupted
given that the parties would be contesting the newly-produced documents for the first time at
trial itself. Accordingly, the most efficient manner to cure the prejudice against NatureWise in
this case would be to exclude the documents. Thus, the second and third factors weigh in favor
of NatureWise’s position.
The fourth factor likewise supports NatureWise’s motion. The court finds that Vitamins
Online’s actions were willful. The court reaches this conclusion because this is the second time
that Vitamins Online has produced documents well after the discovery deadline. Regarding the
first late production, the court determined that it was harmless because NatureWise was already
aware of that information despite the fact Vitamins Online produced it late. Mem. Decision and
Order at 11–12, ECF No. 444. Further, that production occurred in January 2019—more than a
year before trial. Id. at 11. Thus, NatureWise had ample time to verify the newly-produced
information in conjunction with is preparation for trial. In contrast, the most recent production
occurred in late February and early March 2020—approximately a month and a half before the
original trial date.1 Consequently, not only was NatureWise afforded very little time to examine
and verify the information, it received the information when it was in the heat of preparing for
the imminent trial date. Therefore, the fourth factor also favors NatureWise. Accordingly,
because the four factors weigh in favor of finding that Vitamins Online’s late production of
documents was neither justified nor harmless, Vitamins Online will not be permitted to use the
documents at trial.

1

The trial was originally set to begin on April 13, 2020. Trial Order, ECF No. 468. In light of the COVID-19
pandemic, however, the court vacated that trial date, Order Vacating Trial Dates, ECF No. 514, and reset the trial for
July 16, 2020, Scheduling Order, ECF No. 517.

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As a final matter, given the age of this case, Vitamins Online’s continued production of
documents is improper. Additionally, because Vitamins Online contends that all of the belated
documents are publicly available, its late production is even less justifiable inasmuch as the
documents have been readily available to Vitamins Online for quite some time. Therefore, the
court concludes that NatureWise’s second motion in limine should be granted. As a result,
pursuant to Rule 37(c)(1), Vitamins Online will be precluded from using documents labeled as
bates numbers VO0025785 through VO0025946 at trial.
3. Motion in Limine No. 3: Vitamins Online’s Expert Norman Howe
NatureWise moves to preclude Vitamins Online’s expert Norman Howe (“Howe”) from
offering testimony at trial regarding the following Ingredients Claim: “Made in the USA
following strict GMP manufacturing standards” (“Made in the USA Claim”). NatureWise
contends that the Made in the USA Claim should be excluded from trial because Vitamins
Online never disclosed that claim during fact discovery. Instead, that claim first appeared in
Howe’s expert report. In addition, NatureWise seeks to limit Howe’s testimony to (1) the
sixteen Ingredients Claims that he analyzed in his expert report and (2) the specific product lots
that he addressed in his report.
As mentioned above, Rule 37(c)(1) governs whether a party will be permitted to use
information it failed to timely disclose. Thus, the court will consider the four factors to analyze
whether Vitamins Online’s alleged Rule 26 violation regarding the Made in the USA Claim was
justified or harmless. As for the remainder of NatureWise’s requests, the court need not consider
the four factors given that NatureWise is not seeking to exclude information as a result of an
alleged discovery violation, but is merely requesting that Howe’s testimony be confined to the
four corners of his expert report as required by Rule 26(a)(2).

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For the Made in the USA Claim, the court concludes that Vitamins Online’s alleged Rule
26 discovery violation was harmless. First, allowing the Made in the USA Claim to move
forward will result in little prejudice, if any, against NatureWise, and it will not catch
NatureWise by surprise. NatureWise has long been aware of the Made in the USA Claim.
Indeed, NatureWise’s former counsel discussed that claim in depth in a motion that NatureWise
filed back in January 2019. See Mot. for Partial Summ. J on Ingredient Claims at 24–27, ECF
No. 298. Furthermore, NatureWise’s former counsel questioned Howe regarding the Made in
the USA Claim during his deposition in May 2018. Dep. of Norman Howe 189:21–190:1, ECF
No. 287-3. Second, given that NatureWise has been aware of the Made in the USA Claim now
for years, there is, again, little prejudice, if any, that needs to be cured. Third, allowing the Made
in the USA Claim to proceed would not disrupt trial given that NatureWise has long been aware
of its existence. And fourth, the court finds no bad faith or willfulness on the part of Vitamins
Online given that Howe disclosed the claim years ago, and NatureWise’s former counsel had
adequate opportunity to explore it. Therefore, the court concludes that Vitamins Online’s
alleged Rule 26 violation is harmless. Accordingly, the portion of NatureWise’s motion seeking
to exclude the Made in the USA Claim from trial is denied.
Next, the court rejects NatureWise’s request to limit Howe’s testimony to the sixteen
Ingredients Claims and specific product lots in his expert report. During oral argument,
Vitamins Online argued that NatureWise’s motion misconstrues Howe’s report. The court
agrees. NatureWise contends that, in response to its interrogatories, Vitamins Online identified
thirty-eight distinct Ingredients Claims, but then Howe limited his analysis to a mere sixteen
“Key” Ingredients Claims. What NatureWise fails to appreciate, however, is that all of Vitamins
Online’s original thirty-eight Ingredients claims are encompassed by Howe’s sixteen key

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Ingredients Claims. In other words, what NatureWise attempts to construe as a single claim in
Howe’s report, actually consists of several distinct claims from Vitamins Online’s interrogatory
responses. For example, the second Ingredients Claim that Howe identifies in his report
provides, in relevant part:
The statements “NatureWise All Natural Weight Loss Supplement - Zero Fillers,
Zero Binders, Zero Artificial Ingredients”, “Zero Fillers, Zero Binders, Zero
Artificial Ingredients”, “100% Pure – No Fillers”, and “Zero Fillers, Zero Binders,
Zero Artificial Ingredients” appeared on numerous NatureWise primary packages
and bottle labels. These are false claims . . . .
Expert Report of Norman Howe at 89, ECF No. 287-18. Conversely, in its interrogatory
responses, Vitamins Online lists those claims as separate, stand-alone claims:
[2.] Advertising NW Garcinia as having “zero fillers” and “zero binders.”
[. . .]
[6.] That NW Garcinia contains “Zero Fillers, Zero Binders, Zero Artificial
Ingredients.”
[. . .]
[23.] That NW Garcinia contains: “Other Ingredients: Vegetarian Capsules and
Absolutely Nothing Else! Zero Fillers, Zero Binders, and Zero Artificial
Ingredients.”
[. . .]
[30.] That NW Green Coffee products are a “NatureWise All Natural Weight Loss
Supplement- Zero Fillers, Zero Binders, Zero Artificial Ingredients.”
[. . .]
[33.]  That NW Green Coffee products contain “Zero Fillers, Zero Binders, Zero
Artificial Ingredients.”
[. . .]
[36.] That NW Green Coffee products are “100% Pure – No Fillers.”
[. . .]
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Pl. Vitamins Online, Inc.’s Suppl. Resps. to Def./Countercl. Pl.’s Interrog. Nos. 1, 2, and 14 at
10–13, ECF No. 485-3. Thus, when comparing Howe’s second Ingredients Claim to Vitamins
Online’s interrogatory responses, it becomes clear that Howe’s second claim encompasses at
least six of the thirty-eight claims identified in Vitamins Online’s supplemental interrogatory
responses. Importantly, the same holds true for all of the remaining claims: although numbered
differently, Howe’s report discusses each of Vitamins Online’s original thirty-eight claims that it
identified in its interrogatories responses. Accordingly, the court denies NatureWise’s request to
limit Howe’s testimony to a mere sixteen Ingredients Claims.
Finally, the court denies NatureWise’s request to limit Howe’s testimony to the specific
product lots in his report. Again, the court is wary that NatureWise is misapprehending Howe’s
report and attempting to use that misapprehension to confine Howe’s testimony. Therefore, the
court concludes that the proper way to raise concerns regarding Howe’s report in relation to
specific product lots will be through the use of objections at trial.
Accordingly, the court denies NatureWise’s third motion in limine.
4. Motion in Limine No. 4: Vitamins Online’s Expert Norman Howe
NatureWise moves to limit Vitamins Online’s Expert Michael Belch’s (“Belch”)
testimony at trial to the contents of his expert report. Specifically, NatureWise seeks to preclude
Belch from offering any testimony regarding causation of injury pursuant to Rule 26(a)(2).
As stated in his expert report, Belch had two assignments:
First, . . . conduct a primary research study to examine online shoppers’ use and
evaluation of online reviews for weight loss supplements on Amazon.com.
Specifically, the study examined the frequency of use and the importance of
reviews in the decision-making process as well as consumers’ perceptions of the
credibility of these reviews.
[. . .]

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Second, . . . provide [his] opinion concerning the power of “influencers” to create
demand for products, and provide [his] opinion concerning whether Dr. Oz acted
as an influencer concerning the products at issue in this case, and the impact Dr.
Oz’s actions had on the demand for those products, if any.
Expert Report of Michael A. Belch at ¶¶ 9, 11, ECF No. 323-1. In viewing these assignments,
NatureWise argues that Belch’s study was only designed to generally test how Amazon users
consider online reviews when purchasing weight loss products. NatureWise contends that Belch
neither surveyed injury allegedly caused by NatureWise’s accused false advertising, nor did he
test whether any consumers switched from Vitamins Online’s products to NatureWise’s products
because they relied on any particular review at issue in this case. NatureWise further contends
that, despite these flaws in Belch’s survey, he still opines that Vitamins Online was injured by
NatureWise’s alleged conduct. Therefore, NatureWise requests that Belch be precluded from
offering an opinion on the cause of lost sales.
Despite NatureWise’s contentions, the court will not preclude Belch from offering an
opinion on the cause of lost sales at trial. Importantly, Belch concluded that, “[a]ssuming
[Vitamins Online’s] claims are true, and based on [his] business and academic experience, [he]
would opine that [NatureWise’s] practices are deceptive and injurious to Vitamins Online.” Id.
at ¶ 71. Thus, the scope of Belch’s report encompasses potential causes for Vitamins Online’s
lost sales and injury. While NatureWise disagrees that Belch’s report supports such a
conclusion, the court finds that that argument relates more to the weight and design of Belch’s
report, not its relevance or admissibility. See McDonald v. N. Am. Specialty Ins. Co., 224 F.
App’x 761, 767 (10th Cir. 2007) (finding that if “there is a logical basis for an expert’s opinion,

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the weaknesses in the underpinnings of the opinion go to the weight and not the admissibility of
the testimony”).2 Consequently, NatureWise’s fourth motion in limine is denied.
5. NatureWise’s Motion in Limine No. 5: Vitamins Online’s Experts Tommy
Noonan and Julian McAuley
NatureWise moves to preclude Vitamins Online’s Experts Tommy Noonan (“Noonan”)
and Julian McAuley (“McAuley”) from offering testimony at trial regarding literal falsity of
reviews that is not present in their expert report (the “NM Report”) pursuant to Rule 26(a)(2).
More specifically, NatureWise contends that the NM Report made no determinations and stated
no opinions as to the alleged falsity or truthfulness of any of NatureWise’s reviews. As a result,
NatureWise contends that Noonan and McAuley should be precluded from testifying as to
whether any of NatureWise’s reviews are literally false.
In the NM Report, Noonan and McAuley recognize:
It’s impossible for us to determine if a review is “fake” or not by using [our]
method. In my opinion, it’s impossible for anyone to prove a review is “fake” just
by looking at the review itself. [Our] algorithm is specifically looking for patterns
in the data, which might indicate that the reviews are biased.
Expert Report of Tommy Noonan and Julian McAuley at ¶ 27, ECF No. 487-4. Similarly, in
their depositions, Noonan and McAuley noted that their algorithm was not designed to say
whether a specific review was false, and they were not necessarily looking for false statement
reviews through their research. See Dep. of Tommy Noonan and Dep. of Julian McAuley, ECF
Nos. 487-5 and 487-6. Despite such admissions, the NM Report ultimately concludes that “the
only logical explanation of the patterns we are seeing in the data is blatant review manipulation.”
Expert Report of Tommy Noonan and Julian McAuley at ¶ 77. Based on these aspects of the

2

The court notes that much of NatureWise’s motion takes issues with what Belch’s survey did or did not do. Such
arguments, however, go more to the weight of Belch’s survey as opposed to its admissibility. As such, the proper
place for NatureWise to attack, what it perceives to be, flaws in Belch’s survey will be through cross-examination
and objections at trial.

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NM Report, the court concludes that NatureWise’s motion should be partially granted. It is true
that Noonan and McAuley have articulated that their methodology does not establish whether
any single NatureWise review is false. Thus, at trial, Noonan and McAuley will be precluded
from opining on whether any single NatureWise review is literally false—that is, they will be
prohibited from looking at a NatureWise review and opining as to its veracity or falsity.
Nevertheless, the court denies NatureWise’s request to preclude Noonan and McAuley
from testifying on literally falsity entirely. Given the NM Report’s conclusion that NatureWise
blatantly manipulated online reviews, Noonan and McAuley should be permitted to discuss how
they reached the conclusion—a discussion which could very well implicate the doctrine of literal
falsity. Therefore, the court finds that precluding Noonan and McAuley from discussing literally
falsity at all, at this juncture, would be premature and overreaching. Instead, NatureWise will
have the opportunity to challenge Noonan and McAuley’s testimony through objections at trial.
Accordingly, NatureWise’s fifth motion in limine is granted in part and denied in part.
The motion is granted such that Noonan and McAuley will be prohibited from looking at a
particular review and stating whether it is true or false. The motion is denied in all other
respects.
II.

Objections
Pursuant to this court’s Trial Order, ECF No. 468, the parties have submitted their pre-

trial disclosures, including designations of deposition testimony and trial exhibits. In early
March, the parties met and conferred over the course of three days in order to resolve disputes
regarding their respective designations of deposition testimony that they intended to use at trial.
The parties’ efforts over the course of those three days resulted in a substantial reduction in the
number of objections to the designations of testimony. There are, however, objections that

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remain regarding deposition designations and trial exhibits. The court will address each
objection in turn.
1. Deposition Designation Objections
A. NatureWise’s Objections
As to Kevin Harden, NatureWise objects to the following testimony and the court makes
the following rulings:
71:21–72:9 overruled
110:14–21 sustained
As to Tammy Malley-Naslund, NatureWise objects to the following testimony and the
court makes the following ruling:
100:10–18; 100:22–101:2; 101:5 overruled
As to Richard W. Meirowitz, NatureWise objects to the following testimony and the
court makes the following rulings:
393:7–395:15 overruled
502:1–507:17 overruled
507:25–508:8 overruled
B. Vitamins Online’s Objections
As to Tammy Malley-Naslund, Vitamins Online objects to the following testimony and
the court makes the following rulings:
36:17–36:25; 37:4–37:8 overruled
38:1–11 overruled
38:12–25 overruled
39:16–39:25 overruled

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40:1–42:14 overruled
96:9–12 overruled
97:2–98:8 overruled
2. Exhibit Objections
A. NatureWise’s Objections
In response to Vitamins Online’s pretrial disclosures, NatureWise asserted a multitude of
objections. Importantly, NatureWise raises the vast majority of those objections pursuant to
Rule 602 (lack of foundation and personal knowledge) and Rule 801 (hearsay) of the Federal
Rules of Evidence (“FRE”). The court has determined that the proper time for resolving the
foundation and hearsay objections will be during the course of trial when the court can view the
evidence in context, understand the purpose for which Vitamins Online is proffering its
evidence, and verify whether Vitamins Online has laid a proper foundation. In regards to many
of the remaining objections, NatureWise objects to the following exhibits and the court makes
the following rulings:
No. 155: FRE 402/403 overruled
No. 183: overruled3
No. 230: overruled
No. 250: FRE 401/402/403 overruled
No. 322: FRE 401/402/403 overruled
No. 336: FRE 401/402/403 overruled
No. 347: FRE 401/402/403 overruled

3

Exhibit No. 183 is a copy of the complaint in this case. NatureWise objects that the pleadings in this case are not
evidence. Because NatureWise does not raise this objection to a specific rule of evidence, the court has obviously
omitted “FRE.” The court will continue to omit “FRE” for any of the remaining objections untied to a specific rule
of evidence.

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No. 348: FRE 401/402/403 overruled
No. 351: FRE 401/402/403 overruled
No. 352: FRE 401/402/403 overruled
No. 354–355: excluded pursuant to NatureWise’s second motion in limine
No. 362: FRE 402/403 overruled
No. 363: FRE 402/403 overruled
Nos. 364–368: excluded pursuant to NatureWise’s second motion in limine
No. 371: FRE 402/403 overruled
Nos. 391–394: overruled
No. 397: overruled
No. 399: overruled
No. 409: overruled
Nos. 410–427: FRE 402/403 overruled
No. 438–439: FRE 402/403 overruled
No. 443: FRE 402/403 overruled
No. 607: FRE 402/403 overruled
Nos. 626–627: FRE 402/403 overruled
Nos. 630–631: FRE 402/403 overruled
No. 633: FRE 402/403 overruled
No. 635: FRE 402/403 overruled
Nos. 637–638: FRE 402/403 overruled
No. 640: FRE 402/403 overruled
No. 644: overruled

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Nos. 646–647: overruled
B. Vitamins Online’s Objections
Vitamins Online objects to the following exhibits and the court makes the following
rulings:
Nos. 5046–5048: FRE 401/402/403 sustained
No. 5054: FRE 401/402/403 sustained
No. 5058: FRE 401/402/403 sustained
In addition to the foregoing objections, Vitamins Online objects to Exhibit Nos. 5131–5134 and
5137. Specifically, Vitamins Online argues that those exhibits include documents (Document
Control Nos. NW82677 and forward) that NatureWise failed to produce until April 30, 2020,
and, as such, they are untimely and prejudicial. Moreover, Vitamins Online contends that
NatureWise previously refused to produce such documents or claimed that they did not exist.
Therefore, the court concludes that Document Control Nos. NW82677 and forward, that were
produced on April 30, 2020, must be excluded from trial. The court reaches this conclusion
based on the Rule 37(c)(1) factors as outlined and discussed above. Importantly, just as the court
determined when considering NatureWise’s second motion in limine, it would be highly
prejudicial to Vitamins Online to permit NatureWise to use documents that it produced so far
after the required deadline. Accordingly, those documents will be excluded from trial.4
III.

Contingency Plan for Trial
The trial in this case is currently scheduled to commence on July 16, 2020. During oral

argument on the motions in limine, the court expressed its desire to proceed with the current trial
dates, whether in person or through the use of remote videoconference technology. Pursuant to

4

Any objections not specifically addressed herein will be considered during trial.

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the court’s General Order 20-017, certain criteria must be met in order for any bench trial to be
held in person. General Order 20-017 at 3. Once the criteria have been met, the court will enter
Phase 1, wherein “critical” bench trials will be permitted. Id. Given the age and circumstances
of this case, the court has determined that the trial in this case constitutes a “critical” bench trial.
Accordingly, if the criteria for the court to enter Phase 1 has been satisfied prior to the
commencement of trial, the court intends to hold the bench trial in person.
In the event, however, that the court has not entered Phase 1 by the date of the bench
trial, the court intends on proceeding with trial using remote videoconference technology.
During oral argument, Vitamins Online expressed that it had no objection with conducting the
trial over videoconference. Conversely, NatureWise expressed that it would prefer that the trial
be postponed until it can be done in person.
Federal Rule of Civil Procedure 43(a) provides that, as a general matter, a witness’s
testimony at trial “must be taken in open court.” Fed. R. Civ. P. 43(a). However, Rule 43(a)
also provides that “[f]or good cause in compelling circumstances and with appropriate
safeguards, the court may permit testimony in open court by contemporaneous transmission from
a different location.” Id. Under Rule 43, at least two courts have concluded that the COVID-19
pandemic constitutes “good cause and compelling circumstances” to hold bench trials, or at least
portions of bench trials, via remote videoconference technology. Argonaut Ins. Co. v. Manetta
Enterprises, Inc., No. 19CV00482PKCRLM, 2020 WL 3104033, at *2 (E.D.N.Y. June 11, 2020)
(unpublished); In re RFC & ResCap Liquidating Tr. Action, No. 013CV3451SRNHB, 2020 WL
1280931, at *2–5 (D. Minn. Mar. 13, 2020) (unpublished). Notably, in both cases, the courts
determined to move forward with the trials despite at least one of the parties objecting to the use
of videoconference technology and seeking to postpone the trial until it could be done in person.

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Argonaut, 2020 WL 3104033, at *2–5; In re RFC, 2020 WL 1280931, at *2–5. Furthermore,
without addressing Rule 43(a), another court recently denied a party’s motion opposing a trial
being done entirely by videoconference. Centripetal Networks, Inc., v. Cisco Systems, Inc., No.
2:18CV94, 2020 WL 3411385, at *1 (E.D. Va. Apr. 23, 2020) (concluding that, despite the
defendant’s objections, the court would move forward with the bench trial being done
exclusively by videoconference technology). Significantly, the court reached that conclusion in
spite of the fact that the case involved highly complex patent infringement claims, see Mot.
Opposing Trial Entirely by Videoconference at 2, Centripetal Networks, Inc., v. Cisco Systems,
Inc., No. 2:18-CV-94 (E.D. Va. Apr. 10, 2020), ECF No. 388, and the trial would last
approximately three weeks, see Minutes of Proceedings, Centripetal Networks, Inc., v. Cisco
Systems, Inc., No. 2:18-CV-94 (E.D. Va. June 11, 2020), ECF No. 476 (noting that the parties
presented closing arguments on the twenty-second day of the bench trial).
The court therefore concludes that, notwithstanding NatureWise’s objections, this case
will proceed with the trial currently set for July 16, 2020 by the use of videoconference
technology if the court is unable to conduct the trial in person. Given that this case is already
nearly seven years old, the court is wary of further postponement. To that end, the court is
unpersuaded by NatureWise’s desire to delay trial if cannot be done in person. At this point, it is
unclear when the court will be able to resume its ordinary operations. Furthermore, once court
operations have resumed, the court would potentially be required to postpone the bench trial
even further in order to accommodate crucial criminal matters, including criminal trials, which
would take precedence over civil disputes. Thus, in the interest of reaching an expeditious
resolution in this already longstanding case, the court will proceed with the current trial date,
whether in person or by videoconference technology.

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CONCLUSION
Based on the foregoing reasoning, NatureWise’s Motions in Limine No. 1 [ECF No.
483], No. 3 [ECF No. 485], and No. 4 [ECF No. 486] are hereby DENIED. NatureWise’s
Motion in Limine No. 2 [ECF No. 484] is hereby GRANTED, and NatureWise’s Motion in
Limine No. 5 [ECF No. 487] is hereby GRANTED in part and DENIED in part. Moreover,
the court resolves the parties’ objections as described herein. And, finally, the parties are to
ensure their preparation as the court will move forward with trial, beginning July 16, 2020,
whether in person or via videoconference technology.
Dated this 24th day of June, 2020.
BY THE COURT:

____________________________________
DALE A. KIMBALL
United States District Judge

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