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Thorne Research v. Atlantic Pro-Nutrients

United States District Court, D. Utah

February 9, 2018

THORNE RESEARCH, INC. and SOFTGEL FORMULATORS, INC., Plaintiffs,
v.
XYMOGEN, Defendant.

         MEMORANDUM DECISION AND ORDER ORDER GRANTING PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE DIFFERENCES BETWEEN ME PRODUCTS AND CF PRODUCTS AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION IN LIMINE NO. 4 TO EXCLUDE CONTENTIONS NOT DISCLOSED IN PLAINTIFFS 'FINAL INFRINGMENT CONTENTIONS

          TED STEWART, JUDGE

         This matter is before the Court on Plaintiffs' Motion In Limine to Exclude Differences Between ME Products and CF Products and Defendant's Motion In Limine No. 4 to Exclude Contentions Not Disclosed in Plaintiffs' Final Infringement Contentions. For the following reasons, the Court grants Plaintiffs' Motion and grants in part and denies in part Defendant's Motion.

         I. BACKGROUND

         In May 2014, Plaintiffs Thorne and Softgel Formulators (collectively, “Thorne”) served Initial Infringement Contentions which listed Xymogen's CoQMax-100CF and CoQmax CF (the “CF products”) as accused products. Later that year, Xymogen discontinued its CF products and began selling CoQmax-100 ME and CoQmax ME (the “ME products”) instead. Around the same time, in October 2016, Thorne served its Final Infringement Contentions, listing only the CF products as the accused products.

         In April 2017, while obtaining samples of Xymogen's products for expert testing, Thorne learned of Xymogen's discontinuance of all CF products. Nine months later, on January 16, 2018, Thorne confirmed that Xymogen considers the CF and ME products to be different. Thorne now seeks to exclude any testimony or argument from Xymogen regarding any purported differences in formulation between the CF and the ME products, and Xymogen seeks to exclude Thorne from presenting evidence or argument regarding the ME products and any evidence or argument that Xymogen's products contain Clarinol A-80, Clarinol G-80, or Capmul.

         I. STANDARD OF REVIEW

         “A party who has . . . responded to an interrogatory . . . must supplement or correct its disclosure or response: in a timely manner if the party learns that in some material respect the disclosure or response is incomplete . . . .”[1] If a party fails to provide information in compliance with Rule 26(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.”[2] “A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose.”[3] However, in exercising its discretion, the court should consider: “(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.”[4]

         II. DISCUSSION

         The Court's Order denying Thorne's motion to amend its final infringements to include ME barred Thorne from arguing that the ME products are accused products. The Court must now determine whether Xymogen violated Rule 26 in failing to disclose the existence of the ME products.

         A. Excluding Argument that the CF and ME Products are Different

         Thorne's Interrogatory No. 20 requested that Xymogen “[i]dentify the name and product or catalog number of all products that You have made, had manufactured, sold, or marked in the United States that include coenzyme Q10 other than (a) Your CoQmax-100CF product and (b) Your CoQmax CF product.”[5] Xymogen's response directed Thorne to documents being produced during discovery and was never supplemented to include the existence of the ME products.

         Thorne had no knowledge of this switch until April 2017, and only learned of it when Thorne purchased products for expert testing. While the Court already found that Thorne had reason to inquire further into whether Xymogen considered the CF and ME products to be different products, this does not excuse Xymogen's failure to disclose this information.

         Thorne alleges that Xymogen produced materials considering both products side-by-side and produced experts who tested both products. Without disclosing its view of the products as different, Xymogen's actions may have been misleading. Further, Xymogen stated that it “does not ...


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