Free Transfer Document - District Court of California - California

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

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DOWNEY BRAND LLP MICHAEL J. THOMAS (Bar No. 172326) APARNA RAJAGOPAL-DURBIN (Bar No. 218519) 555 Capitol Mall, Tenth Floor Sacramento, CA 95814-4686 Telephone: (916) 444-1000 Facsimile: (916) 444-2100 E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiff Nutrishare, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Nutrishare, Inc., a California corporation, Plaintiff, v. BioRx, LLC, an Ohio Limited Liability Company, Defendant.

Case No. 2:08-CV-01252-WBS-EFB
DECLARATION OF KATHRYN BUNDY Date: Time: Dept: Judge: August 11, 2008 2:00 p.m. Courtroom 5 Hon. William B. Schubb

I, KATHRYN BUNDY, hereby declare as follows: 1. I am an individual residing in Los Angeles, California. I make this declaration of

my own personal knowledge, and if called to testify, could and would testify consistent with the facts stated herein. 2. I suffer from Crohn's disease and require total parenteral nutrition ("TPN") in

order to receive adequate nutrition. 3. In approximately May, 2008, I called NutriThrive's toll-free number listed on

www.nutrithrive.com about three to four times to inquire about NutriThrive's products and services. Because I am a performer in Hollywood and wanted my condition to remain private at the time, I used a pseudonym. The first time I called NutriThrive, I reached BioRx's hemophilia pharmacist because I called after hours. The second and third time I called NutriThrive, I spoke 1
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DECL. OF KATHRYN BUNDY IN SUPPORT OF OPP. TO DEF'S MOT. TO DISMISS OR TRANSFER

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with NutriThrive's head TPN pharmacist Kathleen. I told Kathleen that I was interested in NutriThrive's services, but was concerned that NutriThrive was based in Ohio. Kathleen responded that NutriThrive works with patients in California, would send one of its nurses to California to help me get started on TPN, and would subsequently have a local nurse from one of the several agencies in the area assist me with TPN. Kathleen said that NutriThrive has relationships with several nursing agencies in California. I also asked if NutriThrive was accredited by the American Commission on Healthcare (ACHC), to which Kathleen responded "yes." Kathleen subsequently sent me a "start-up" packet, which included a thick binder containing NutriThrive's promotional materials and her business card. Attached hereto as Exhibit A are true and correct copies of portions of the "start-up" packet that NutriThrive mailed to me. Ultimately, I decided not to use NutriThrive's products and services, so I left Kathleen a final voicemail letting her know about my decision. 4. Between June 26 and June 29 of this year, I attended the Oley Conference in San

Diego. This conference is a consumer-focused educational conference held every year in a different location. The first thing I noticed at the conference this year was that NutriThrive's name was almost everywhere. I don't remember the Oley Foundation playing favorites in the past like it did with NutriThrive this year. For example, there were signs all over the buffet tables on the first full day of the conference indicating that lunch was sponsored by NutriThrive. I really felt that this compromised the integrity of the conference, which should be all about the consumer and not the company. 5. Another incident that bothered me happened on the Sunday of the conference.

After the picnic lunch, while I was lounging at the pool with a few other TPN consumers whom I had befriended during the conference, I was approached by a woman I didn't know. I don't remember her name, but she sat down next to me and started asking me questions about myself. As the discussion continued, she seemed to be pumping me for more information and I started to feel uncomfortable ­ like I was being courted or wooed. I asked the woman if she was a TPN consumer, and she responded that her daughter was a TPN consumer, and when I asked her who her TPN provider is, she said she uses NutriThrive, and finally revealed to me that actually, she 2
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Case No. 2:08-CV-01252-WBS-EFB

DECLARATION OF KATHRYN BUNDY IN SUPPORT OF OPPOSITION MOTION TO DISMISS OR TRANSFER VENUE

EXHIBIT A

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