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GREENBERG TRAURIG, LLP
ATTORNEYS AT LAW SUITE 700 2375 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016 (602) 445-8000
Steven M. Weinberg, SBN 016817, [email protected] Brian J. Schulman, SBN 015286, [email protected] Kimberly A. Warshawsky, SBN 022083, [email protected] Attorneys for Plaintiff Awareness Corporation and Third Party Defendants Allcock and Schmidt IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Awareness Corporation, Plaintiff, v. Group Vision International, L.L.C., et al., Defendants. No. CV03-2024-PHX-DGC AWARENESS CORPORATION'S MOTION IN LIMINE NO. 2 TO EXCLUDE GENERAL EVIDENCE AND TESTIMONY REGARDING THE USE AND EFFECT OF THE INGREDIENTS SENNA AND WORMWOOD
Plaintiff Awareness Corporation ("Awareness") moves in limine pursuant to Rules 401, 402, and 403, Fed.R.Evid., to exclude at trial all general evidence and testimony (collectively, "evidence") regarding the use and effect of the ingredients senna and wormwood. General evidence regarding these ingredients and/or components of Awareness' products, without reference to the specific levels of each found in Awareness' various products, is not relevant to any claims remaining in this case following the Court's June 1, 2005 Order on the parties' respective Motions for Summary Judgment (the "June 1 Order"). In any event, the defendants' proposed evidence is hearsay pursuant to Rule 802, Fed.R.Evid., and is not subject to any exception. The evidence must be excluded. Awareness' motion is supported by the following Memorandum of Points and Authorities, and the entire Court record in this case.
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MEMORANDUM OF POINTS AND AUTHORITIES The Distributor Defendants have marked as proposed trial exhibits articles collected on the Internet regarding the general use and effects of senna and wormwood (collectively, the "Internet articles"). Although the Internet articles, marked as Exhibits363-374 and 484, detail the harmful effects that could be caused by ingesting senna and wormwood, they do not discuss the amount at which any of these ingredients become "dangerous" to consumers. The parties' experts agree that the safety of these ingredients depends upon the amount taken of each. The Internet articles are therefore not relevant and must be excluded at trial. "Whether evidence is relevant is a matter left to a trial court' discretion." Fallar v. s Compuware Corp., 202 F.Supp.2d 1067, 1081 (D. Ariz. 2002). "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Irrelevant evidence is not admissible at trial. See FED.R.EVID. 402. Furthermore, "relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." FED. R. EVID. 403. Because of their generic nature, the Internet articles do not make any fact of consequence in this litigation, including facts relevant to Awareness' Lanham Act and the Distributor Defendants' negligent misrepresentation claims, more or less probable than they would be without the evidence. With respect to Awareness' Lanham Act claims, the relevant inquiry is whether the Distributor Defendants' statements that Awareness' products Experience and Clear are dangerous because they contain senna and wormwood, respectively, are literally and deliberately false. Both Awareness' and the Distributor Defendants' experts agree that senna and wormwood are not inherently dangerous, and
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that the safety of the product depends upon the amount of each ingredient in the product. General evidence regarding these ingredients is therefore not relevant. In fact, evidence regarding the use and effect of wormwood is not relevant at all, because both experts agree the amount of wormwood has no pharmacological effect on Awareness' product Clear whatsoever. The effect of senna and wormwood are not relevant to the Distributor Defendants' claims for negligent misrepresentation whatsoever. Even if the Internet articles were relevant, however, the probative value of the articles are substantially outweighed by the danger of unfair prejudice to Awareness. The only purpose for introducing general information regarding the "danger" of using unspecified dosages of senna and wormwood is to mislead the finder of fact into believing that (i) any use of these ingredients is dangerous and (ii) Awareness' products are dangerous merely because they include senna and wormwood. Even the Distributor Defendants' expert cannot agree with such general statements. Finally, even if the Internet articles are both relevant and non-prejudicial to Awareness, they must be excluded as hearsay. Each of the articles is an out-of-court statement offered into evidence for the truth of the matters contained therein. The articles are not otherwise subject to any hearsay exceptions, and do not have the "circumstantial guarantees" of trustworthiness as required by Rule 803(24). Green v. Baca, 226 F.R.D. 624, 637-38 (C.D. Cal. 2005). Awareness therefore asks that this Court enter an order in limine precluding the use of the Internet articles at trial pursuant to Rules 401, 402, and 403 of the Federal Rules of Evidence. Pursuant to the Case Management/Electronic Case Filing Administrative Policies and Procedures Manual G.1.a. and b., Awareness has submitted an electronic form of Order.
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RESPECTFULLY SUBMITTED this 8th day of August, 2005. GREENBERG TRAURIG, LLP By: /s/ Kimberly A. Warshawsky Steven M. Weinberg Brian J. Schulman Kimberly A. Warshawsky Attorneys for Awareness Corporation and Third Party Defendants Allcock and Schmidt
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CERTIFICATE OF SERVICE I hereby certify that on August 8, 2005, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for filing and transmittal s of a Notice of Electronic Filing to the following CM/ECF registrants: Curtis D. Drew, Esq. 2342 North Pima Road Scottsdale, Arizona 85257-2405 [email protected] Attorney for Defendant Group Vision International, L.L.C. G. Gregory Eagleburger, Esq. The Eagleburger Law Group 2999 North 44th Street, Suite 303 Phoenix, Arizona 85018 [email protected] Attorneys for Distributor Defendants I hereby certify that on August 8, 2005, I served the attached document by facsimile and United States mail on the following, who are not registered participants of the CM/ECF System:
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/s/ J. David Smith
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