Free Transfer Document - District Court of California - California

Case 3:08-cv-01493-JM-BLM

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1 AMY WINTERSHEIMER FINDLEY (BAR NO. 163074) MICHAEL R. ADELE (BAR NO. 138339) 2 CHARLENE J. WILSON (BAR NO. 222497) ALLEN MATKINS LECK GAMBLE 3 MALLORY & NATSIS LLP 501 West Broadway, 15th Floor 4 San Diego, California 92101-3541 Phone: (619) 233-1155 5 Fax: (619) 233-1158 E-Mail: awintersheimer@allenmatk~ns.com [email protected] 6 [email protected] 7 Attorneys for Defendant 8 BIoRX, LLC 9 10 11 12 NUTRISHARE, INC., a California corporation,Case No. 2:08-cv-01252-WBS-EFB 13 14
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Plaintiff,

Complaint filed June 4, 2008 DEFENDANT BIORX, LLC'S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION DATE: TIME: CRTM: August 18, 2008 2:00 p.m. 5

15 BIORX, LLC, an Ohio Limited Liability Company, 16 Defendant. 17 18 19

Defendant BioRx, LLC ("BioRx") hereby submits the following evidentiary objections to

20 the evidence cited below and filed by PlaintiffNutrishare, Inc. ("Plaintiff') in support of its 21 Motion for Preliminary Injunction. BioRx hereby requests and moves that the Court sustain its 22 objections and strike the evidence on the grounds set forth below: 23 I. 24 25 DECLARATION OF REID A. NISHIKAWA Obiection #1: Testimony: P. 1, lines 26-28, "several physicians, with whom Nntrishare has a

26 professional relationship involving patients, have become confused about the connection between 27 Nutrishare and NutriThrive." 28 /////
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

702146.011SD

OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:08-cv-01493-JM-BLM

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Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

2 opinion testimony of a lay witness; FRE 802, hearsay. 3 4 Objection #2: Testimony: P. 2, lines 1-5, "At the 2007 annual meeting of the meeting... Samuel

5 Kocoshis, MD... informed me that when he heard about NutriThrive, he initially believed that 6 NutriThrive was somehow related to Nutrishare..." 7 8 9 Ground(s) for objection: FRE 802, hearsay. Objection #3: Testimony: P. 2, lines 6-8, "On or about February, 2008, Leo Rodriguez... informed me

10 that he had been contacted by NutriThrive representative to arrange a meeting." 11 12 13 14 15 16 Ground(s) for objection: FRE 802, hearsay. Objection #4: Testimony: P. 2, lines 8, "He agreedto meet with them... " Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 802, hearsay. Objection #5: Testimony: P. 2, lines 11-14, "On or about February, 2008, Alex Flores, MD, from Tufts

17 Medical Center Floating Hospital in Boston, informed me that NutriThrive had contacted him and 18 that he, as well as his colleagues, were getting confused about the relationship between 19 NutriThrive and Nutrishare." 20 Ground(s) for objection: FRE 701, Improper opinion testimony of a lay witness; FRE 802,

21 hearsay. 22 23 24 25 26 IIIII 27 IIIII 28 IIIII
LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP
II

Obiection #6: Testimony: P. 2, lines 14, 26-28, "Even after he met with NutriThrive representative(sic)

Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 802, hearsay.

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[I.

DECLARATION OF ANITA WALLIN

Objection #7: Testimony: P. 2, lines 6-7, "The second time I spoke with the discharge planner she

4 mentioned that she was working on getting this patient set up with NutriThrive." 5 6 7 8 9 10 Ground(s) for objection: FRE 802, hearsay. Objection #8: Testimony: P. 2, line 8, "At first I thought she had misspoken, but she repeated it." Ground(s) for objection: FRE 802, hearsay. Obiection #9: Testimony: P. 2, lines 8-9, "I then had to correct her that it was Nutrishare, not

11 NutriThrive, that we wanted for the patient's TPN." 12 13 III. 14 15 Ground(s) for objection: FRE 701, Improper opinion testimony of a lay witness. DECLARATION OF RODNEY OKAMOTO Objection #10: Testimony: P. 4, lines 4-8, "We now have a reputation in the industry and amongst the

16 clinical leaders in the field of Home TPN as the "superior Home TPN pharmacy service" in the 17 country, which can be verified by; physicians, nurses and dietitians who work for competitors as 18 well as clinicians who are routinely "teaching faculty" ~at the ASPEN, ESPEN, and the AGA 19 (American Gastroenterology Association)." 20 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701,. Improper

21 opinion testimony of a lay witness; FRE 802, hearsay. 22 23 Objection #11: Testimony: P. 4, lines 13-15, "Consumer surveys tablulated in a~ticles published by

24 Nutrishare illustrate that Nutrishare's consumers experience fewer central catheter complications 25 than customers of other pharmacy services." 26 Ground(s) for objection: FRE 602, lack of personal knowledge re the experience of

27 Nutrishare's consumers; FRE 701, Improper opinion testimony of a lay witness; FILE 802, hearsay. 28 /////
LAW OFFICES Allerl Matkins Leek Gamble Mallory & Natsis LLP

702146,01/SD

-3OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SI~PORT OF MOTION FOR PRELIMINARY INJUNCTION

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Objection #12: Testimony: P. 4, lines 16-19, "The Oley Foundation also conducted Home TPN

3 satisfaction surveys in 1994 and 1995, which demonstrated that Nutrishare's customers, as 4 compared to other customers of other providers, were significantly more satisfied .with their Home 5 TPH pharmacy service." 6 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

7 opinion testimony of a lay witness; FRE 802, hearsay. 8 9 Obiection #13: Testimony: P. 6, lines 3-5, "Nutrishare... is held in high esteem amongst Home TPN

10 consumers as well as clinicians throughout the country." 11 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

12 opinion testimony of a lay witness; FRE 802, hearsay. 13 14 Objection #14: Testimony: P. 6, lines 17-18, "The exact cost of this time and effort may potentially

15 amount to millions of dollars... " 16 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

17 opinion testimony of a lay witness. 18 19 20 21 Obiection #15: Testimony: P. 6, lines 20-21, "the 'Nutrishare' mark has developed distinctive meaning to
consumers."

Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

22 opinion testimony of a lay witness; FRE 802, hearsay. 23 24 Obiection #16: Testimony: P. 6, lines 21-24, "By virtue of Nutrishare's advertising and sales, together

25 with customer acceptance and recognition, the 'Nutrishare' mark identifies Nutrishare's products 26 and services, only, and distinguishes them from products and services provided by others." 27 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

28 opinion testimony of a lay witness.
LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP -4-

702146.01/SD

OBJECTIONS

TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION

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Objection #17: Testimony: P. 6, lines 24-25, "The ~utrishare' mark has thus become and is a valuable

3 asset symbolizing Nutrishare, its quality products and services, and its goodwill." 4 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

5 opinion testimony of a lay witness. 6 7 Objection #17: Testimony: P. 7, lines 2-8, "BioRx's webs-site, www.BioRx.net, states that BioRx is a

8 national provider and distributor of certain specialty pharmaceuticals, related supplies, as well as 9 clinical and reimbursement support services, and provides: (1) in-home hemophilia care; (2) in10 home Immunogloblulin G services; (3) in-office enteral and parental (sic) nutrition; and (4) in11 home enteral and parenteral nutrition." 12 13 14 Ground(s) for objection: FRE 802, hearsay. Objection #17: Testimony: P. 13, lines 10-16, "At last year's Oley Foundation Conference in June, 2007,

15 BioRx made its debut. A representative of BioRx announced that BioRx was establishing a new 16 division called ~utriThrive' to provide in-home enteral nutrition and in-Home TPN products and 17 services. The representative indicated that NutriThrive was in the nascent stages of its existence, ' 18 had not yet established a web-site, and did not yet have a single customer. In conjunction with 19 NutriThrive's announcement, BioRx (using the NutriThrive name) sponsored the Oley Foundation 20 at the donor level immediately below the Platinum level." 21 Ground(s) for objection: FRE 602, lack of personal knowledge (witness did not testify that

22 he attended the conference and heard the statements); FRE 802, hearsay (because of the lack of 23 personal knowledge/foundation, the witness may be basing his testimony on what was told to him 24 by others, which would be hearsay, as opposed to statements he personally heard made by a 25 party). 26 27 Obiection #18: Testimony: P. 7, lines 27-28, "NutriThrive's advertisements adopt substantiall'y verbatim

28 the language in Nutrishare's advertisements."
LAW OFFICES

Allen Matkins Leek Gamble Mallory & Natsis LLP

"5-

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OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPOR.T OF MOTION FOR. PKELIMINAR.Y INJUNCTION

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Ground(s) for objection: FILE 701, Improper opinion testimony of a lay witness; FRE 802,

2 hearsay. 3 4 Objection #19: Testimony: P. 8, line 12, "NutriThrive's web-site functions almost identically to

5 Nutrishare's web-site." 6 Ground(s) for objection: FRE 701, Improper opinion testimony of a lay witness; FRE 802,

7 hearsay. 8 9 Obiection #20: Testimony: P. 8, lines 16-17, "The only functional difference appears to be that

10 NutriThrive does not have links to newsletters, and its.on-line educational services are still under 11 construction." 12 Ground(s) for objection: FRE 701, Improper opinion testimony of a lay witness; FRE 802,

13 hearsay. 14 15 Ob,iection #21: Testimony: P. 8, lines 20-21, "Within the past six months, NutriThrive has begun

16 encroaching on Nutrishare's sales territory, and actually has solicited Nutrishare's customers." 17 18 19 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 802, hearsay. Obieetion #22: Testimony: P. 8, lines 22-23, "medical professionals actually became confused about the

20 relationship between the two companies." 21 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE. 701,. Improper

22 opinion testimony of a lay witness; FRE 802, hearsay. 23 24 Obiection #23: Testimony: P. 8, lines 24-27, "a pharmacist named Tim from Sullivan's Pharmacy in

25 Boston... indicated that the names ~Nutrishare' and 'NutriThrive' could cause confusion among 26 his pharmacists... " 27 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

28 opinion testimony of a lay witness; FRE 802, hearsay.
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

-g-

702146.01/SD

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,,Objection #24: Testimony: P. 9, lines 7-8, "We are also concerned about NutriThrive misrepresenting to

3 consumers and to the public that it is accredited by the ACHC." 4 5 6 Ground(s) for objection: FIlE 602, lack of personal knowledge; FRE 802, hearsay. Objection #25: Testimony: P. 9, lines 8-10, "As part of their start-up mailer package, NutriThrive has sent

7 at least one home TPN consumer (who is located in California) a business cared indicating that 8 NutriThrive is accredited by the ACHC.". 9 10 11 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 802, hearsay. Objection #26: Testimony: P. 9, lines 10-11, "Presumably, all of NutriThrive's current and potential

12 customers receive the same start-up package containing the business card." 13 Ground(s) for objection: FILE 602, lack of personal knowledge; FILE 701, Improper

14 opinion testimony of a lay witness. 15 16 Objection #27: Testimony: P. 9, lines 11-13, "NutriThrive l~as also verbally represented to at least one

17 home TPN consumer and one ACHC board member that it is accredited by the ACHC (and not the 18 JCAHO)." 19 20 21 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 802, hearsay. Objection.#28: Testimony: P. 9, lines 13-14, "Although BioRX may be accredited by the ACHC,

22 NutriThrive is not." 23 24 25 Ground(s) for objection: FRE 602, lack of personal knowledge; FR£ 802, hearsay. Objection #29: Testimony: P. 9, lines 16-19, "NutriThrive does not currently have Board certified

26 nutrition support pharmacists managing the day to day care of its patients and does not have a 27 comparable breadth and years of experience in caring for Home TPN consumers that Nutrishare 28 does; from staffing, to research technology development and education programs."
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

702146,01/SD

OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:08-cv-01493-JM-BLM

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Ground(s) for objection:. FRE 602, lack of personal knowledge; FRE 701,. Improper

2 opinion testimony of a lay witness. 3 4 Objection #30: Testimony: P. 9, lines 19-20, "NutriThfive also appears not to currently offer education on

5 the state-of-the-art in Home TPN." 6 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

7 opinion testimony of a lay witness. 8 IV. 9 10 11 SUPPLEMENTAL DECLARATION OF RODNEY OKAMOTO Objection #31: Testimony: The entirety of the declaration.. Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

12 opinion testimony of a lay witness. 13. 14 Objection #32: Testimony: Pp. 1-2, lines 28- 1, "Although Defendant BioRx, LLC is accredited by the

15 ACHC, its in-home TPN division, NutfiThfive, is not accredited." 16 Ground(s) for objection: FR~ 602, lack of personal knowledge; FRE 701, Improper

17 opinion testimony of a lay witness. 18 19 Objection #33: Testimony: P. 2, lines 1-3, "On Wednesday, July 2, 2008, I spoke with Mr. Cesar to

20 discuss my concerns that NutriThrive is misleading the public by saying it is accredited by the 21 ACHC, when it is not accredited .... " 22 Ground(s) for objection: FRE 602, lack of personal knowledge (re "misleading the public"

23 and "when it is not accredited"); FRE 701, Improper opinion testimony of a lay witness (re 24 "misleading the public" and "when it is not accredited"). 25 26 Obiection #34: Testimony: P. 2, lines 3-4, "[Mr. Cesar]... assured me that the matter is being

27 investigated by the ACHC." 28
LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP

Ground(s) for objection: FRE 802, hearsay.
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Ob]ection #35: Testimony: P. 2, lines 4-7, "Mr. Cesar also told me that, in his opinion as president of the

3 leading organization that licenses in-home healthcare providers, it is dangerous and not in the best 4 interests of the public for Bi0Rx to continue to use the 2qutriThrive' name, given Nutrishare's 5 similar name and nearly identical therapeutic specialty, because it is likely to confuse the public." 6 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

7 opinion testimony of a lay witness; FRE 802, hearsay. 8 9 Objection #36: Testimony: P. 2, lines 7-8, "According to Mr. Cesar, the ACHC's Director of

10 Accreditation, Sherry Hedrick, shares this opinion." 11 Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 701, Improper

12 opinion testimony of a lay witness; FRE 802, hearsay. 13 Dated: August 4, 2008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES

ALLEN MATK1NS LECK GAMBLE MALLORY & NATSIS LLP By: s/Amy Wintersheimer Findley AMY WINTERSHEIMER FINDLEY MICHAEL R. ADELE CHARLENE J. WILSON Attorneys for Defendant BIoRx, LLC

Allen Matkins Leck Gamble Mallory & Natsis LLP

702146.01/SD

-9OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION