Free Response to Motion - District Court of Arizona - Arizona

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G. Gregory Eagleburger, #002695 The Eagleburger Law Group 2999 N. 44th Street, Suite 303 Phoenix, Arizona 85018 (602)840-6533 Fax (602)808-9402 Attorney for Individual Defendants

IN THE UNITED STATES DISTRIC COURT DISTRICT OF ARIZONA

Awareness Corporation, Plaintiff, v. GROUP VISION INTERNATIONAL, L.L.C., a Michigan limited liability company; KELLY MATTICE and PAIGE MATTICE, husband and wife; KEVIN and CHERYL MACGREGOR, husband and wife dba THE LIFE TREE; LYNN and RENIE REMELSKI; and DAVID and SUZANNE BETTS, Defendants.
And related cross claims and third party actions.

Case No. CV03-2024-DGC INDIVIDUAL DEFENDANTS RESPONSE TO AWARENESS' MOTION IN LIMINE NO. 2

Individual Defendants hereby respond to Awareness' Motion in Limine No. 2 to exclude General Evidence and Testimony Regarding the use and effect of the ingredients Senna and Wormwood and respectfully contend that evidence about the use and effects of Senna and Wormwood goes to the heart of Awareness claims of Lanham Act and the Individual Defendants' claims of Negligent Misrepresentation, in that whatever statements were made about these products were not deliberately false or deceptive

Case 2:03-cv-02024-DGC

Document 381

Filed 08/15/2005

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because they were based upon reliable information as verified by experts. This Response is further supported by the following Memorandum of Points and Authorities and the entire Court record in this case. MEMORANDUM OF POINTS AND AUTHORITIES The issue to which this evidence applies is the failure of Awareness to advise its distributors and customers of the change in ingredients of its products by written or electronic communications, labeling or brochures while representing that its product was clinically tested as safe and effective even when those tests were not done on the changed

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formula. As shown in the deposition of Individual Defendants' Expert, Dr. Timmerman, the "dangerous" nature is not limited to the dosage but also the length of time you can take it continuously and the lack of any warning against continuous use and the existence of a substance not listed on the label or approved by the FDA. (See Timmermann Depo. pp. 24-25, 40, 46, 51-52, 66, 88, 106-107, 137-147, 151 attached). The very fact that ingredient Senna and Wormwood are not listed on the label is dangerous to the unknown consumer. Awareness also asked that they be excluded in advance of trial as "hearsay."

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Hearsay is not a proper subject for a motion in limine but if they are hearsay (See Rule 801(k)) these documents fall within an exception to the general rule (See Rule 803(17) or Rule 807). The articles are not intended to prove their literal truth but to show the mental basis for the Individual Defendant statements about Senna and Wormwood; are published works generally used and relied upon by the public or persons in the occupation of the
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Individual Defendants. As far as this information "misleading the finder of fact" the court has already clearly stated that this is a bench trial, there is little chance of that occurring. There is no prejudice to Awareness other than the exhibits, prove that the Individual Defendant had good reason for making the statements they did. Prejudice from adverse evidence is not unfair prejudice. Therefore Awareness Motion in Limine No. 2 should be denied. RESPECTFULLY SUBMITTED this 15th day of August, 2005. THE EAGLEBURGER LAW GROUP By: /s/ G. Gregory Eagleburger Attorney for Individual Defendants

The ORIGINAL of the foregoing electronically filed with the Clerk of the Court this 15th day of August, 2005 and a COPY hand-delivered to: The Honorable David G. Campbell U. S. District Court of Arizona 401 West Washington Phoenix, Arizona 85003-2118 And a copy mailed to: Steven M. Weinberg, Esq. Greenberg Traurig, LLP 2375 E. Camelback Rd., Suite 700 Phoenix, AZ 85016 Attorneys for Plaintiff . . . . . . Curtis D. Drew, Esq.
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2342 N. Pima Scottsdale, AZ 85257-2405 Attorney for Group Vision International, LLC /s/ Jill Robinson

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