United States District Court, D. Utah
THORNE RESEARCH, INC. and SOFTGEL FORMULATORS, INC., Plaintiffs,
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S
MOTION IN LIMINE NO. 3 TO EXCLUDE EXPERT TESTIMONY REGARDING
DR. PAUL ABATO'S ALLEGED RELIANCE ON EUROFINS
matter is before the Court on Xymogen's Motion In
Limine No. 3 to Exclude Expert Testimony Regarding Dr.
Paul Abato's Alleged Reliance on Eurofins Report. For the
following reasons, the Court denies the Motion.
6, 2016, Plaintiffs Thorne Research, Inc.'s and Softgel
Formulators, Inc.'s (collectively “Thorne”)
expert, Kent Rader, submitted a declaration to which a report
from Eurofins Scientific Inc. Supplement Analysis Center (the
“Report”) was attached. The Report details
chemical analyses performed on Xymogen's accused
17, 2017, Thorne served Dr. Paul Abato's expert report,
in which he explains the materials he considered in reaching
his opinions regarding the contents of Xymogen's accused
products. The Report was not mentioned among the
materials considered. Xymogen alleges the Report was also not
mentioned as a source on which Dr. Abato based his opinions
in his deposition, which took place on May 17, 2017. However,
on December 26, 2017, Dr. Abato submitted an errata in which
he added the Report as a basis for his
opinions. Xymogen now seeks to bar “Dr. Paul
Abato from testifying that he relied on [the Report], because
he failed to timely disclose this alleged reliance in his
expert report or during his deposition.”
their Response, Thorne argues Dr. Abato should not be
precluded from offering testimony that he relied on the
Report in reaching his conclusions because Xymogen was put on
notice that Dr. Abato did in fact rely on the Report. Thorne
cites to two disclosures to support its argument. First, Dr.
Abato's deposition transcript, wherein Xymogen asked him
if “the [Report] analyze[d] the chemical composition of
the accused products” and what the Report concluded
about the products. Second, Dr. Abato's expert report
wherein he lists “[t]he Court dockets for the case,
” under the “Facts or Data Considered”
portion of his expert report. The Report is included in the
STANDARD OF REVIEW
expert report must contain “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.” “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.”“A district court need not make
explicit findings concerning the existence of a substantial
justification or the harmlessness of a failure to
disclose.” 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
is no Rule 26 violation, so Rule 37(c) does not apply. But,
even if there was a violation, it is harmless since the Court
finds that the weight of the above-stated factors is in favor
of allowing Dr. Abato to testify regarding the Report.
Thorne has shown sufficient evidence that Xymogen was on
notice that Dr. Abato relied on the Report in reaching his
conclusions. In fact, as referenced, Thorne questioned him in
regard to the contents of the Report during his deposition.
Therefore, the prejudice or surprise to Xymogen is minimal.
Because there is minimal prejudice, the ability of Xymogen to
cure the prejudice is irrelevant. Therefore, both the first
and second factors weight in favor of allowing Dr. Abato to
discuss the Report.
the extent to which allowance of the disputed testimony will
disrupt trial is minimal. Dr. Abato will simply discuss an
additional document which supports his conclusions. Trial
will not be interrupted in any meaningful way by this
the record does not support that Thorne acted in bad faith.
Thorne knew that Xymogen had knowledge of the Report as it
was contained in the Docket, and further, because Xymogen
asked Dr. Abato about the Report in his deposition.
on the above analysis, the Court finds allowing Dr. Abato to
testify about the Report to be harmless and will ...