Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2372-PSF-PAC JACK BARRECA Plaintiff, v. SOUTH BEACH BEVERAGE CO., INC.; LOTTE U.S.A.; and 7-ELEVEN, INC. Defendants.

DEFENDANTS' BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE TO ALLOW MR. BARRECA TO TESTIFY AS ONE OF ORDINARY SKILL IN THE ART, OR IN THE ALTERNATIVE, TO AMEND THE PRETRIAL ORDER TO ADD MR. BARRECA AS AN EXPERT WITNESS WHO WILL TESTIFY AT TRIAL ______

Defendants South Beach Beverage Company, Inc., 7-Eleven, Inc. and Lotte USA, Inc., by and through their attorneys, hereby respond to Plaintiff's Motion in Limine to Allow Mr. Barreca to Testify as One of Ordinary Skill in the Art, or in the Alternative, to Amend the Pretrial Order to Add Mr. Barreca as an Expert Witness Who Will Testify at Trial. I. INTRODUCTION

Plaintiff has affirmatively represented to this Court that he is not one of ordinary skill in the art. Now, faced with the realization that he has no admissible evidence to establish

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infringement, Plaintiff claims that, not only is he one of ordinary skill in the art, but that he is in fact an expert on the scientific issues of the properties of taurine and vitamin C and their effect on the human metabolism. The Court should see through Plaintiff's last minute attempt to salvage his claim. Plaintiff is not one of ordinary skill in the art of chewing gum design and manufacture. Even if he had some general knowledge in this area, he has not demonstrated how this would qualify him to testify regarding taurine and vitamin C and the science of their effect on the human body or the principles of metabolic enhancement. Nor does Plaintiff's status as the named inventor of the '839 patent qualify him to testify on this issue. As to Plaintiff's request to amend the Final Pretrial Order, Plaintiff was never disclosed as an expert in this case. Plaintiff did not identify himself as an expert throughout almost three years of litigation (including the companion case, No. 02-F-2303, before this Court). He never identified expert opinions, and he never produced an expert report. The Final Pretrial Order in this case has already been filed. It does not identify Plaintiff as an expert. Plaintiff never even attempted to identify himself as an expert in preparation of the Order. These failures both betray that Plaintiff knows, and has always known, that he is not an expert, and also preclude Plaintiff from now trying to name himself as a testifying expert. Plaintiff cannot repeatedly flout court deadlines, and he cannot be allowed to benefit from what could only be a lack of diligence or gamesmanship in his expert witness strategy. The most incredible aspect of Plaintiff's Motion is his claim that he is qualified to serve as an expert witness on the science of the effect of taurine and vitamin C on the human body and the principles of metabolic enhancement. He is no such expert. He has no academic or work experience that would qualify him as an expert on these issues, and, in fact, the sole basis for his

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new-found claim that he is an expert is the fact that he claims to have read some journals and internet articles. This new claim does not make him an expert. To hold otherwise would both ignore the facts in this case and cripple expert witness legal standards by setting a policy that any lay witness can become an expert on any topic by spending a few hours in the library or on the internet. In the end, it is evident that Plaintiff cannot be allowed to testify on the scientific issues of the properties and effects of taurine and vitamin C and the principles of metabolic enhancement, whether he claims to be testifying as one allegedly skilled in the art, as the named inventor of the '839 patent, or as an expert witness. As a result, the Court should deny Plaintiff's Motion. II. A. LAW AND ARGUMENT

Plaintiff is Not One of Ordinary Skill in the Art, and His Status as the Named Inventor of the '839 Patent Does Not Qualify Him to Testify on the Scientific Issues of the Properties and Effects of Taurine and Vitamin C and the Principles of Metabolic Enhancement.

Plaintiff's Motion is premised, at least in part, on his new contention that he is one of ordinary skill in the art. According to Plaintiff, his status as one allegedly skilled in the art would allow him to testify regarding the scientific issues of the properties and effects of taurine and vitamin C and the principles of metabolic enhancement. Plaintiff is wrong on both counts. In the prior litigation between these same parties, Plaintiff specifically represented to this Court that he is not one of ordinary skill in the art. In connection with the Court's Markman hearing, Defendants offered extrinsic evidence in the form of deposition testimony from Plaintiff to aid the Court in construing the claims of the '540 patent. After the Court issued its Markman Order, Plaintiff sought reconsideration, and in doing so alleged that the Court had erred in considering Plaintiff's testimony: "The Court improperly relied upon the extrinsic evidence of

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Mr. Barreca's Deposition testimony because he is admittedly not one of ordinary skill in the art[.]" Plaintiff's Motion to Reconsider Court's Order on Claims Construction at 26 (emphasis added). Now, Plaintiff tries to do a 180 degree turn and claim that his is, in fact, one of ordinary skill in the art. The only reason for this new claim is the fact that Plaintiff has no admissible evidence to establish the claim limitation that an accused product contain the type of metabolic enhancers that increase a user's metabolism to achieve a higher caloric burn rate. The Court should not allow Plaintiff to now distance himself from his prior representations. Further, even if Plaintiff were to be considered one of ordinary skill in the art of chewing gum design and manufacture, there is no basis for Plaintiff's claim that this knowledge qualifies him to testify regarding the scientific question of whether taurine and/or vitamin C are the type of metabolic enhancer that increases a user's metabolism to achieve a higher caloric burn rate. Indeed, Plaintiff has presented no evidence that he has any specialized education, training or experience with regard to this discrete issue. Thus, even if the Court were to consider Plaintiff to be one of ordinary skill in the art of chewing gum design and manufacture, it does not follow that his status as such qualifies him to testify on the issue at hand. Plaintiff makes the related argument that, as the named inventor of the '839 patent, he should be allowed to testify on this issue. According to Plaintiff, his status as the named inventor allows him to testify, pursuant to Federal Rule of Evidence 701, about infringement of his patent. As an initial matter, the case law cited by Plaintiff on this issue is inapposite. Both De Graffenried v. United States, 2 Cl. Ct. 640 (Ct. Cl. 1983) and Meese v. Eaton Mfg. Co., 35 F.R.D. 162 (N.D. Ohio 1964) dealt with situations in which the alleged infringer sought, during discovery, the inventor's contentions and opinions concerning infringement, and the courts found

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it proper to compel the inventor to disclose those opinions. Neither of those cases involved a situation in which an inventor was attempting to offer affirmative evidence in support of his infringement claim, as Plaintiff is trying to do here. application to the facts of this case. A case involving facts nearly identical to those in the present case was recently decided by the Federal Circuit. In Air Turbine Technology, Inc. v. Atlas Copco AB, 410 F.3d 701 (Fed. Cir. 2005), the lower court had excluded testimony from one of the co-inventors of the patent at issue regarding the accused product. See id. at 712. On appeal, the patent holder argued, just as Plaintiff does in his Motion, that the testimony should be allowed under FRE 701, because the co-inventor's testimony was "rationally based on [his] own perceptions and experience. Id.1 The patent holder also argued, just as Plaintiff does in his Motion, that the testimony should be allowed because of the witness's status as a co-inventor. See id. In response, the alleged infringer argued, just as Defendants do here, that the proposed testimony was properly the subject of expert testimony, and therefore could not be introduced under FRE 701. See id. at 713. The Federal Circuit agreed with the alleged infringer, and affirmed the exclusion of the witness's proffered testimony. See id. In doing so, the Court stated that "the fact that [the coinventor] may have particularized knowledge and experience as a co-inventor of the claimed invention does not necessarily mean he also has particularized knowledge and experience in the structure and workings of the accused device." Id. at 714. A similar disposition is warranted here. Plaintiff is not an expert, and the issue on which he proposes to testify is clearly one that requires expert testimony. Further, Plaintiff's status as
In making this argument, the patent holder relied on the very same case Plaintiff cites in his Motion, Tampa Bay Shipbuilding & Repair v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003). See id.
1

Consequently, those cases have no

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the named inventor of the '839 patent does not mean that he has any particularized knowledge regarding the SoBe Energy gum or the scientific characteristics of its components. As such, just as in Air Turbine Technology, Plaintiff should not be permitted to testify on this issue. B. Plaintiff Was Never Disclosed as an Expert, and His Purported Expert Testimony Should Therefore Be Excluded Under Federal Rule of Civil Procedure 37.

Recognizing that he cannot testify regarding the issue of the properties and effects of taurine and vitamin C and the principles of metabolic enhancement under Rule 701, Plaintiff also asks that the Court allow him to amend the Final Pretrial Order to list himself as a testifying expert witness. However, Plaintiff was never disclosed as an expert on this issue, and never provided an expert report detailing his alleged expert conclusions. In fact, it is undisputed that: · · · Plaintiff filed this lawsuit on November 25, 2003. The deadline for Plaintiff to name expert witnesses and provide expert reports in this case was August 1, 2004. Plaintiff named no experts at that time. The deadline for Plaintiff to name rebuttal expert witnesses in this case was October 1, 2004. Plaintiff named five rebuttal experts on October 1, 2004, but he was not one of them. See Plaintiff's Designation of Rebuttal Experts, attached as Exhibit A. Because Plaintiff had not named any expert witnesses, Defendants did not name any rebuttal experts by the Court's November 1, 2004 deadline to do so. Discovery closed on December 20, 2004, and at no time prior to that date did Plaintiff represent that he was an expert. Plaintiff did not list himself as an expert witness in the Final Pretrial Order, which was signed by this Court and filed June 30, 2005. Plaintiff did not file a motion to amend the Final Pretrial Order to name Plaintiff as an expert witness until September 7, 2005, more than nine months after discovery closed, and more than two months after the Final Pretrial Order was entered. Plaintiff was asked during discovery for the basis for his claim that taurine was the type of metabolic enhancer at issue. In his response, Plaintiff did not identify

· · · ·

·

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himself as an expert who would testify on this issue, nor did he ever supplement his response to those interrogatories. · At no point during the litigation between these same parties over the '540 patent (which was filed in December 2002) was Plaintiff ever disclosed as an expert on this topic. In fact, in connection with the Court's Markman hearing in that case, Plaintiff specifically represented in pleadings to the Court that he was not even one of ordinary skill in the art, let alone an expert on this issue: "The Court improperly relied upon the extrinsic evidence of Mr. Barreca's Deposition testimony because he is admittedly not one of ordinary skill in the art[.]" Plaintiff's Motion to Reconsider Court's Order on Claims Construction at 26. Because of Plaintiff's alleged illnesses, Plaintiff's deposition had to be re-noticed six times, and was not taken until late March and early April 2005. As of that time, Plaintiff still did not indicate that he intended to testify as an expert witness on any issue. In fact, Plaintiff identified a list of individuals (not including himself) who were purportedly his experts in this case, and then stated that he had no other expert witnesses. See March 22, 2005 Deposition of Jack Barreca at 83-85, attached as Exhibit B.

·

Plaintiff has blatantly neglected his duties under Rule 26 to both name experts and to provide proper supplementation to prior discovery responses. "A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1). Furthermore, "exclusion of evidence is a standard sanction for a violation of the duty of disclosure under Rule 26(a)." Pena-Crespo v. Commonwealth of Puerto Rico, 408 F.3d 10, 13 (1st Cir. 2005)(emphasis added)(citation omitted). Here, Plaintiff cannot claim that his failure to designate himself as an expert witness was substantially justified. The only explanation that has been proffered by Plaintiff was that he thought that the alleged admission of Defendant 7-Eleven in the '540 litigation that taurine is a metabolic enhancer was sufficient to establish this claim limitation.2 Plaintiff cannot avoid court

See Plaintiff's Motion in Limine to Allow Mr. Barreca to Testify as One of Ordinary Skill in the Art, or in the Alternative, to Amend the Pretrial Order to Add Mr. Barreca as an Expert Witness Who Will Testify at Trial at

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deadlines and duties under the court rules by blaming his own litigation strategy and then asking for another try. "A misunderstanding of the law does not equate to a substantial justification for failing to comply with the disclosure deadline." See Musser v. Gentiva Health Services, 356 F.3d 751, 758 (7th Cir. 2004). Further, this Court rejected the theory that Plaintiff could rely on that alleged admission to establish the claim limitation at issue. Plaintiff's incorrect assumption that he need not be named as an expert is not substantial justification for his failure to do so. Nor can Plaintiff show that his failure was harmless. As an initial matter, not only did Plaintiff fail to name himself as an expert witness, but, when asked during his deposition who he thought his experts were, he affirmatively represented that he had no experts other than the ones he identified at his deposition (which did not include himself). See March 22, 2005 Deposition of Jack Barreca at 83-85. Further, Plaintiff's belated attempt to name himself as an expert has deprived Defendants of the opportunity to name rebuttal experts on the subject. Finally, Defendants have no way to cross-examine Plaintiff regarding the substance of his alleged expert opinion, as it is based entirely on the knowledge and work of others, and, in any event, his deposition has already been taken. This prejudice alone warrants the exclusion of Plaintiff as an expert witness. See Scott and Fetzer Company v. Dile, 643 F.2d 670, 673 (9th Cir. 1981)(addressing a situation in which the district court judge had allowed a party to present previously undisclosed witnesses, including experts, and finding that "[t]hese actions by the district judge denied Dile his right to prepare effective cross-examination and to present rebuttal witnesses and exhibits. We note that the need for preparation for effective cross-examination is even more compelling where expert testimony is involved.").

3.

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The Court is undoubtedly familiar with the test set forth in Woodworker's Supply, Inc. v. Principal Mutual Life Ins. Co., 170 F.3d 985 (10th Cir. 1999), for determining whether a failure to comply with Rule 26 is justified or harmless. Two of the factors set forth in that case weigh strongly in favor of preventing Plaintiff to testify as an expert witness at trial. First, the

"prejudice or surprise to the party against whom the testimony is offered" is evident. As set forth above, Defendants have no rebuttal experts on this topic, and have no means by which to crossexamine Plaintiff regarding his purported opinions. Furthermore, it is only now, after months of discovery has been completed, a Final Pretrial Order put in place, and the exchange of the parties' exhibits that Plaintiff has chosen to attempt to name himself as an expert on this issue. It is too late for him to do so. In addition, the "moving party's bad faith or willfulness" also weighs in favor of exclusion. While Plaintiff claims that his failure to identify himself as an expert on the scientific issue of the properties and effects of taurine and vitamin C on the human body was the result of a mistake regarding what he thought he would have to prove at trial, there can be no dispute that his decision not to name himself as an expert was a conscious one. As a result, his actions in that regard are deemed willful. See Continental Ins. Co. v. McGraw, 110 F.R.D. 679, 683 (D. Colo. 1986)("To be 'willful' the failure need not necessarily be accompanied by wrongful intent. It is sufficient if it is conscious or intentional, not accidental or involuntary."). Plaintiff made a strategic decision on how he wanted to litigate this case, and he was wrong. He must be forced to live with the consequences of his decision. C. Even if the Court Were to Allow Plaintiff to Amend the Final Pretrial Order, the Fact Remains That Plaintiff is Not an Expert on This Issue.

Plaintiff is not one or ordinary skill in the art. Plaintiff has no excuse for failing to name himself as an expert witness during the nearly three years of litigation between these parties, and

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should not be allowed to amend the Final Pretrial Order at this late date. Setting those issues aside, there is an even more fundamental reason why Plaintiff should not be allowed to testify as an expert witness ­ he is not an expert. 1. The scientific issues of the properties and effects of taurine and vitamin C and the principles of metabolic enhancement require expert testimony.

The specific scientific question of whether taurine and vitamin C are the type of metabolic enhancers that increase a user's metabolism to achieve a higher caloric burn rate is a question that can only be answered through expert, scientific testimony. Indeed, this Court previously recognized this fact in its Markman Order in the first case between these parties, when it held that "[w]hether such ingredients are present and whether they have the expressed capability is a matter that scientists should be able to determine from an objective test[.]" Barreca v. South Beach Beverage Co., 322 F.Supp.2d 1186, 1196 (D. Colo. 2004)(emphasis added). The Court was correct, and its Markman Order and summary judgment ruling have been affirmed by the United States Court of Appeals for the Federal Circuit. Testimony regarding the scientific questions of the properties and effects of taurine and vitamin C and the principles of metabolic enhancement falls outside the realm of knowledge of an average juror, and is exactly the type of "scientific, technical or other specialized knowledge" contemplated by Federal Rule of Evidence 702.3 As the Tenth Circuit has held, "when the subject matter of proffered testimony constitutes 'scientific, technical, or other specialized knowledge,' the witness must be qualified as an expert

See also United States v. Rice, 52 F.3d 843, 847 (10th Cir. 1995)("There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.")(quoting advisory committee notes to FRE 702).

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under Rule 702."

Lifewise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir.

2004)(emphasis added). At this stage, the only proffered "expert" testimony on this issue is that belatedly offered by Plaintiff, himself. As is set forth more fully below, Plaintiff is not qualified as an expert on this subject, and cannot be permitted to testify in that capacity. 2. Plaintiff does not meet the requirements of FRE 702 to testify as an expert.

Federal Rule of Evidence 702 governs the admission of expert testimony. That Rule provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. FRE 702. The burden of proving the admissibility of Plaintiff's purported expert testimony is on Plaintiff. See In re Breast Implant Litigation, 11 F.Supp.2d 1217, 1222 (D. Colo. 1998).

According to the Tenth Circuit, "[t]here are two requirements that a party seeking to offer expert testimony must satisfy before the trial judge may permit a witness to testify. First, the witness must be [an] expert. . . . Second, the expert's testimony must assist the trier of fact." City of Hobbs v Hartford Fire Ins. Co., 162 F.3d 576, 586 (10th Cir. 1998). Here, neither requirement has been fulfilled with regard to Plaintiff's proposed expert testimony about the nature of taurine and vitamin C and the principles of metabolic enhancement. In its recent opinion, the Court stated that Plaintiff had "presented some credentials that suggest he has qualifications to give an expert opinion." August 9, 2005 Order on Motions for Summary Judgment and for a Markman Hearing at 14. The Court then went on to identify those

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credentials as the fact that Plaintiff claims to have "many years of work in the health and fitness industry and considerable research on various active ingredients that may be suitable for gums." Id. at 15. While this experience may qualify Plaintiff to testify as an expert on the health and fitness industry and chewing gum generally, more is required before he can be allowed to testify as an expert on the specific scientific issue of the properties and effects of taurine and vitamin C. See City of Hobbs, 162 F.3d at 587 ("Though a proffered expert possesses knowledge as to a general field, the expert who lacks specific knowledge does not necessarily assist the jury."); In re Breast Implant Litigation, 11 F.Supp.2d at 1240 ("Dr. Guidoin's expertise in chemistry and 'biological engineering' do not necessarily make him qualified to testify in the medical areas of pathology, inflammatory reactions, or cellular activities in humans. Dr. Guidoin's background and experience do not necessarily qualify him to testify about how the human body medically responds to breast implants. The Court concludes that Dr. Guidoin is not qualified to give any opinion concerning [these subjects]."). That Plaintiff is not an expert on the specific scientific issues of the properties and effects of taurine and vitamin C and the principles of metabolic enhancement is demonstrated by his deposition testimony. That testimony reveals that Plaintiff has no first hand knowledge of anything related to these particular issues. As an initial matter, Plaintiff did not claim that his experience in the health industry generally gave him any insight into these issues. Further, Plaintiff admitted at his deposition that his alleged "expertise" comes only from his own reading on the topic: Q. What is taurine?

Mr. Kovarik: Objection.

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Q. A. Q. A.

Do you know? I have a general understanding. What is that general understanding based on? My research, documented articles, science articles, generally printed definitions.

* * * Q. A. Okay. What evidence do you have that vitamins are metabolic enhancers? Just, again ­ the only evidence I have is evidence that I've read and studied up on and received from other parties that certain vitamins, if not all vitamins, affect the metabolic rate in some fashion and enhance the metabolic rate. That is the intent of vitamins, is to benefit the end user and enhance the individual using them. So based on that, that is the only evidence I have. Like I said, it's just stuff that I read or researched. You say "research." What do you mean besides your reading? Well, research meaning the Internet or I spent a lot of time in the food science journals at the library. There are multiple volumes of things called the Food Science Journals. And it talks about basically all additives and everything relevant to food and what the compositions are. And I saw references to vitamins in there and how they are encompassed in food products and such.

Q. A.

March 22, 2005 Deposition of Jack Barreca at 50, 108-10 (emphasis added). Plaintiff went on to admit at his deposition that his purported knowledge on this subject was nothing more than his reading on the topic, and did not include any clinical work of his own: Q. Because you haven't done any clinical work on any of the physical properties of any of the ingredients in the '839 patent, correct?

Mr. Kovarik: Objection. Mischaracterizes testimony. A. I haven't ­ I'm not a doctor. I mean, that is what I interpret as clinical work, or scientist. I've just done reading and research, is what I'm referring to. So my question is whether you've done any ­ under that definition of clinical, whether you've done any clinical assessments or research?

Q.

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A. Q.

I've done some research, yes, sir. Have you done any clinical work on any of the ingredients identified in the '839 patent? I personally have done no clinical work, but I've read articles where clinical work has been done.

A.

Id. at 119-120 (emphasis added). Plaintiff likewise admitted that he is not an expert on this issue. He claimed at one point that he had given the gum to three people, asked them to chew it, and asked them to tell him "how they felt." The results of this query? Plaintiff testified: "To the best of my memory, I got mixed results. Some people said that ­ as a matter of fact, of all the people that I gave the gum to, it was ­ they did feel something. I don't know if that was a placebo effect or actual effect. Again, I'm not an expert regarding that type of stuff. Just generally, they did say they felt something."4 Id. at 67-68 (emphasis added). Similarly, with regard to vitamin C, Plaintiff's deposition testimony reveals that Plaintiff lacks any knowledge whatsoever, even from journals or articles, regarding whether vitamins act as the specific type of metabolic enhancer at issue here: Q. Do you have any evidence that vitamins increase the user's metabolism in order to achieve a higher caloric burn rate? I would have to say that specifically, I don't remember those exact phrases in any of the things that I've read So I have to answer that that to the best of my knowledge, no.

A.

March 22, 2005 Deposition of Jack Barreca at 109-10 (emphasis added).

Hearsay issues aside, the fact that a gum chewer may have "felt something" has nothing to do with the issue of whether a metabolic enhancer in the gum was of the type that is designed to increase a user's metabolism to achieve a higher caloric burn rate.

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Thus, Plaintiff is no more qualified to testify on this issue than the average person with a home computer and an internet connection. A similar situation was addressed by the United States District Court for the District of Kansas in United States v. Kelly, 6 F.Supp.2d 1168 (D. Kan. 1998). In that case, the court was faced with a motion to exclude a purported expert on the grounds that he was not qualified to render an opinion on a specific subject. In holding that the proffered expert testimony should be excluded, the court held: [The proffered expert's] qualifications are largely a matter provable only through his own opinion of himself. He lacks any academic background, formal education or training, and experience that would qualify him as an expert on the subject of growing, harvesting, and processing of marijuana. His unique exposure to these topics is limited to his self-directed efforts at reading reference works, talking with some researchers and growers, and then summarizing the work of others into popular "how-to" guides. . . . Just saying you've talked with "many" outdoor growers does not make one an expert on the general practices of outdoor growers in Kansas. Id. at 1184-85 (emphasis added). This is precisely the situation here. Plaintiff's purported expertise in this area is limited to his own self-directed efforts at reading reference materials. He has no academic background, formal education or training, or experience that would qualify him as an expert on the scientific subjects of the properties and effects of taurine and vitamin C and the principles of metabolic enhancement. As a result, he cannot be allowed to testify as an expert witness on this subject.5 3. Plaintiff's proffered "expert testimony" is not a proper expert opinion.

Even if Plaintiff were an expert on some issues, his purported "opinion" regarding the scientific issues of the properties and effects of taurine and vitamin C and the principles of
The Court should also note that Plaintiff's attempt to distance himself from the foregoing admissions by submitting an affidavit directly contrary to his sworn testimony is nothing more than an attempt to create a sham issue of fact. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)(disregarding a later affidavit that conflicted with earlier testimony for purposes of ruling on a summary judgment motion and noting that "the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony").
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metabolic enhancement is nothing more than a simple restatement of the opinions of others (i.e. the authors of the articles he has read). This practice does not meet the requirements for an admissible expert opinion. A similar situation was addressed by the Tenth Circuit in TK-7 Corp v. Barbouti, 993 F.2d 722 (10th Cir. 1993). In that case, one of the plaintiffs' experts attempted to testify regarding lost profits based on sales projections generated by another individual, who was also purportedly an expert but who did not testify at trial. See id. at 731. In finding that such testimony was inadmissible, the Tenth Circuit first held that the plaintiffs had the "burden of proving the underlying assumptions contained in the [other individual's] report." Id. at 732. Because the other individual's projections had not been

admitted into evidence, the Tenth Circuit found that the testifying expert's use of those projections as part of his testimony was improper. See id. See also Beck's Office Furniture and Supplies v. Haworth, Inc., 94 F.3d 655, 1996 WL 466673, *7 (10th Cir. (Utah) 1996)("[Experts] may not merely parrot the opinions of other experts whose conclusions are not themselves in the record."). The Tenth Circuit also rejected the plaintiffs' argument that the testifying expert's adoption of the other individual's projections was proper under FRE 703. The court found that, because the testifying expert lacked familiarity with the other individual's methods or reasoning, there could be no meaningful cross-examination of the testifying expert. See id. As a result, the court found the testimony based on the other individual's projections inadmissible. See id. at 733. Here, the concerns expressed by the TK-7 court are equally applicable. Plaintiff's alleged expert opinion would consist of him basically reciting from the journals and articles that he has

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reviewed, and would not come from any independent knowledge or analysis of his own. Further, Defendants obviously would have no opportunity for meaningful cross-examination of Plaintiff regarding the content of those articles, as he did not author them. Consequently, Plaintiff's proffered expert testimony is inadmissible. D. Defendants are Entitled to Summary Judgment on the Issue of Infringement.

As the foregoing demonstrates, Plaintiff is not qualified to serve as an expert witness on the discrete scientific issues of the properties and effects of taurine and vitamin C and the principles of metabolic enhancement, and his purported opinion is, in any event, fatally deficient. Even if Plaintiff were an expert with a properly admissible opinion, his testimony should still be excluded for his failure to properly disclose himself as an expert. In its August 9, 2005 Order, the Court noted three arguments made by Plaintiff in opposition to Defendants' Motion for Summary Judgment Regarding Infringement. After

dispatching of the first two, the Court denied Defendants' Motion on the third ground, but only because the Court had not yet been presented with a Motion to exclude Plaintiff's purported expert testimony. See August 9, 2005 Order on Motions for Summary Judgment and for a Markman Hearing at 15. Now that the present Motion is before the Court, it is appropriate for the Court to exclude Plaintiff as an expert witness, and therefore enter an Order of summary judgment finding that Defendants have not infringed the '839 patent.

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III.

CONCLUSION

Based on the foregoing, Defendants respectfully request that the Court deny Plaintiff's Motion and enter an Order granting them summary judgment as to infringement.

Dated: September 27, 2005

s/ Adam J. Brody

Kevin Abraham Rynbrandt Adam J. Brody Varnum, Riddering, Schmidt & Howlett LLP P.O. Box 352 Grand Rapids, MI 49501-0352 Tel. (616) 336-6000 Fax: (616) 336-7000 Emails: [email protected] [email protected] and Michael L. Hutchinson, No. 20853 Treece, Alfrey, Musat & Bosworth, P.C. 999 18th Street, Suite 1600 Denver, CO 80202 Tel. (303) 292-2700 Fax: (303) 295-0414 Email: [email protected] for Defendants South Beach Beverage Company, Inc., 7-Eleven, Inc., and Lotte U.S.A., Inc. CERTIFICATE OF SERVICE I hereby certify that on this 27th day of September, 2005, I presented the foregoing to the Clerk of Court for filing and uploading to the CM/ECF system which will send notification of such filing to the email addresses of the following persons: Joseph E. Kovarik, Esq. ([email protected]) Robert Brunelli, Esq. ([email protected]) Sheridan Ross, P.C. 1560 Broadway, Suite 1200 Denver, CO 80202-5141 s/Adam J. Brody Adam J. Brody (P62035)

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