Motion For Summary Judgment

Download as pdf or txt
Download as pdf or txt
You are on page 1of 26

Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 1 of 26

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
--------------------------------------- X
:
:
:
In re Lyman Good Dietary Supplements Litigation : 17-CV-8047 (VEC)
:
:
:
--------------------------------------- X

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF


MOTION FOR SUMMARY JUDGMENT

EPSTEIN BECKER & GREEN COZEN O’CONNOR


Jack Wenik, Esq. (Bar ID: 2025641) Vincent P. Pozzuto, Esq. (Bar ID: 2730307)
Robert M. Travisano, Esq. (Bar ID: 3909348) Rachel H. Bevans, Esq. (Bar ID: 5345145)
David J. Marck, Esq. (Bar ID: 5081500) Attorneys for Defendant
Attorneys for Defendants VITAMIN SHOPPE, INC.
GASPARI NUTRITION, INC., and, 45 Broadway Atrium, 16th Floor
HI-TECH PHARMACEUTICALS, INC. New York, New York 10006
One Gateway Center, 13th Floor (212) 509-9400
Newark, New Jersey 07102
(973) 642-1900

875 Third Avenue


New York, NY 10022
(212) 351-4500

LAW OFFICE OF ARTHUR W. LEACH


Arthur W. Leach (admitted pro hac vice)
Attorney for Defendants
GASPARI NUTRITION, INC., and,
HI-TECH PHARMACEUTICALS, INC.
4080 McGinnis Ferry Road,
Suite 401
Alpharetta, GA 30005
(404)-786-6443 Oral Argument Requested
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 2 of 26

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii


I. INTRODUCTION .................................................................................................................. 1
II. BACKGROUND .................................................................................................................... 3
A. Plaintiff’s Background and His Allegations ....................................................................... 3
B. Plaintiff is Constrained to Proceeding on a Design Defect Theory .................................... 4
C. Plaintiff’s Expert Report is Stricken and His Expert is Barred from Testifying ................ 5
III. LEGAL STANDARD ......................................................................................................... 5
IV. ARGUMENT ...................................................................................................................... 6
A. Plaintiff Lacks Any Admissible Evidence that Anavite Contains 1-
Androsetnedione ................................................................................................................. 7
1) 1-Androsetnedione and Androstenedione are Not Interchangeable ............................... 7
2) Plaintiff will Not be Able to Offer Any Admissible Evidence that Anavite
Contains 1-Androstenedione .......................................................................................... 8
i. The Sports Medicine Research and Testing Laboratory Reports are Hearsay ............ 9
ii. The Business Records Hearsay Exception Does Not Apply to the SMRTL
Reports....................................................................................................................... 11
B. Plaintiff Cannot Rely on Double Hearsay from USADA about Anavite’s Contents ....... 15
C. Admissible Evidence of the Adulteration of Anavite with 1-Androstenedione is an
Essential Element of Each of Plaintiff’s Claims ............................................................... 15
1) Plaintiff’s Design Defect Based Product Liability Claims Must Be Dismissed ........... 16
i. Plaintiff’s Lacks Any Evidence that Anavite was Defectively Designed ................. 16
ii. Plaintiff’s Lack of an Expert Provides Additional Grounds to Dismiss Counts
Two, Three, Six, Seven, and Eight ............................................................................ 17
2) Plaintiff’s Statutory Claims and Express Warranty Claim Must Be Dismissed ........... 18
D. Plaintiff’s Claims For Punitive Damages Must Be Dismissed ......................................... 19
V. CONCLUSION ..................................................................................................................... 20
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 3 of 26

TABLE OF AUTHORITIES
Page(s)

Cases

Agriculture Ins. Co., Inc. v. Ace Hardware Corp.,


214 F.Supp.2d 413 (S.D.N.Y. 2002)........................................................................................15

Auz v. Century Carpet, Inc.,


No. 12 Civ. 417 (LGS), 2014 WL 199511 (S.D.N.Y. Jan. 17, 2014)......................................11

Avola v. Louisiana–Pacific Corp.,


991 F.Supp.2d 381 (E.D.N.Y.2013) ........................................................................................18

Barban v. Rheem Textile Sys., Inc.,


No. 01-CV-8475 (ILG), 2005 WL 387660 (E.D.N.Y. Feb. 11, 2005), aff’d,
147 F. App’x 222 (2d Cir. 2005) .............................................................................................17

Bullcoming v. New Mexico,


564 U.S. 647 (2011) .................................................................................................................14

Century Pac., Inc. v. Hilton Hotels Corp.,


528 F. Supp. 2d 206 (S.D.N.Y. 2007), aff’d, 354 F. App’x 496 (2d Cir. 2009)......................13

Community of Roquefort v. William Faehndrich, Inc.,


303 F.2d 494 (2d Cir. 1962).......................................................................................................9

Cuntan v. Hitachi KOKI USA, Ltd.,


No. 06–CV–3898, 2009 WL 3334364 (E.D.N.Y. Oct 15, 2009) ............................................17

Dash v. Seagate Tech. (U.S.) Holdings, Inc.,


27 F. Supp. 3d 357 (E.D.N.Y. 2014) .................................................................................18, 19

Delehanty v. KLI, Inc.,


663 F. Supp. 2d 127 (E.D.N.Y. 2009) .....................................................................................17

Frazer v. ITW Food Equip. Grp. LLC,


No. 11 CV 9699, 2013 WL 6164486 (S.D.N.Y. Nov. 22, 2013) ............................................17

Fuentes v. Scag Power Equip.-Division of Metalcraft of Mayville, Inc.,


No. 2:17-cv-825 (DRH)(AKT), 2019 U.S. Dist. LEXIS 136802 (E.D.N.Y.
Aug. 13, 2019) .........................................................................................................................16

Lara v. Delta Int’l Mach. Corp.,


174 F. Supp. 3d 719 (E.D.N.Y. 2016) .......................................................................5, 6, 16, 17

McCarthy v. Olin Corp.,


119 F.3d 148 (2d Cir. 1997).......................................................................................................6

ii
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 4 of 26

Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009) .................................................................................................................14

Colon ex rel. Molina v. BIC USA, Inc.,


199 F. Supp. 2d 53 (S.D.N.Y. 2001)......................................................................................6, 9

Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A.,
85 N.Y.2d 20, 647 N.E.2d 741 (1995) .....................................................................................19

Porter v. Quarantillo,
722 F.3d 94 (2d Cir. 2013)...................................................................................................6, 10

Raskin v. Wyatt Co.,


125 F.3d 55 (2d Cir. 1997).....................................................................................................8, 9

Rocanova v. Equitable Life Assurance Soc’y,


83 N.Y.2d 603 (N.Y. 1994) .....................................................................................................19

Rodriguez v. Modern Handling Equip. of NJ, Inc.,


604 F. Supp. 2d 612 (S.D.N.Y. 2009)......................................................................................15

Roman v. Sprint Nextel Corp.,


No. 12-CV-276 VEC, 2014 WL 5026093 (S.D.N.Y. Sept. 29, 2014).......................................5

Sarno v. Douglas Elliman–Gibbons & Ives, Inc.,


183 F.3d 155 (2d Cir. 1999).................................................................................................9, 10

United States v. Kaiser,


609 F.3d 556 (2d Cir. 2010).....................................................................................................11

Statutes and Other Authorities

N.Y. Gen. Bus. L. §§ 349 and 350 .............................................................................2, 6, 16, 18, 19

Initial Disclosure, 8A Fed. Prac. & Proc. Civ. § 2053 § 2053 (3d ed.) .........................................13

Fed. R. Civ. P. 37(c)(1) ..................................................................................................................13

Fed. R. Evid. 803 ...........................................................................................................2, 11, 13, 14

Fed. R. Evid. 902(11) .................................................................................................................2, 14

Federal Rule of Civil Procedure 56 .........................................................................................1, 5, 9

Local Civil Rule 56.1 .......................................................................................................................3

Rule 26 .................................................................................................................................1, 12, 13

Rule 37 ...........................................................................................................................................13

iii
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 5 of 26

Rule 702 ...........................................................................................................................................6

Rule 802 .........................................................................................................................................10

iv
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 6 of 26

Defendants Gaspari Nutrition, Inc. (“GNI”) Hi-Tech Pharmaceuticals, Inc. (“Hi-Tech”)

and Vitamin Shoppe, Inc. (collectively, “Defendants”), submit this memorandum of law in

support of their motion pursuant to Federal Rule of Civil Procedure 56 seeking the dismissal of

Plaintiff Lyman Good’s Second Amended Complaint (ECF No. 60) as there are no genuine

issues of material fact and Defendants are entitled to judgment as a matter of law.

I. INTRODUCTION

Summary judgment is appropriate here because Plaintiff lacks any admissible evidence

that Anavite contains 1-androstenedione, which was the sole substance detected in Plaintiff’s

urine that caused him to fail his performance enhancing drug (“PED”) test, and led to his

suspension from the Ultimate Fighting Championship (“UFC”). Without such evidence, Plaintiff

cannot prove any of his claims, or even create a material issue of fact regarding the allegedly

offending contents of Anavite, which is an essential element of each of his claims. This is so

because the only “evidence” that Anavite supposedly contains 1-androstenedione is hearsay

evidence that Plaintiff cannot rely on in opposition to this motion or at trial.

Plaintiff’s sole piece of evidence that Anavite contains 1-androstenedione are two pages

of “Confidential Test Reports” from Sports Medicine and Research Testing Laboratory

(“SMRTL”). Those test reports are unauthenticated hearsay documents that cannot be admitted

to prove the matter asserted therein, namely that Anavite is supposedly adulterated with trace

levels of 1-androstenedione. The SMRTL testing reports are hearsay because Plaintiff will

attempt to use them (or other evidence that relies on them) to prove that the Anavite tested by

SMRTL contained 1-androstenedione, and he will do so without the declarant (e.g., the lab

technician from SMRTL) being available. No one from SMRTL will be available to testify

regarding these test reports because Plaintiff failed to include anyone from SMRTL in his Rule

1
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 7 of 26

26(a) Initial Disclosures, or any other discovery response, which is an automatic bar to their later

being called to testify. Plaintiff also failed to depose anyone from SMRTL about its testing of

Anavite or even seek authentication of the test reports, such as through a Fed. R. Evid. 902(11)

certification. Finally, SMRTL is located in Salt Lack City, Utah, which is outside the

jurisdictional limit for service of subpoenas in this case. Thus, the declarant from SMRTL is

unavailable and the test reports are inadmissible hearsay.

Plaintiff’s failure to call anyone from SMRTL or list any witnesses from there on his

initial disclosures also makes it impossible for him to prove that the business record hearsay

exception applies to the SMRTL test reports. That is the case because the exception

unambiguously requires testimony from “the custodian or another qualified witness” that the

document is, in fact, a business record. Fed R. Evid. 803(6)(D). Without any testimony from

SMRTL, Plaintiff will be completely unable to meet his burden on this evidentiary issue. As

such, the SMRTL test reports are hearsay evidence for which no exception applies and which the

Court cannot consider.

Plaintiff cannot create any material issue of fact regarding whether Anavite contains 1-

androstenedione: there is simply no other evidence in the record, admissible or otherwise, that

Anavite contains 1-androstenedione. This conclusion compels the dismissal of Plaintiff’s claims

because, as described in detail below, the supposed adulteration of Anavite is a key element of

each of Plaintiff’s claims, whether they allege some species of products liability (strict liability

or negligence), contractual liability (express or implied warranty), or are statutory in nature

(consumer fraud claims based on N.Y. Gen. Bus. L. §§ 349 and 350). Put differently, if Plaintiff

cannot create a material issue of fact as to the contents of Anavite (which he cannot without the

2
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 8 of 26

inadmissible SMRTL test reports), then he cannot meet his burden in opposition to this motion

for summary judgment and his Second Amended Complaint must be dismissed.

In addition to these evidentiary issues, Plaintiff’s implied warranty and products liability

claims must be dismissed because Plaintiff’s expert has been barred from testifying by the Court,

and as a result, Plaintiff also lacks the ability to prove an essential element of these claims.

Plaintiff’s Second Amended Complaint must be dismissed with prejudice.

II. BACKGROUND1

A. Plaintiff’s Background and His Allegations

The allegations in Plaintiff’s Second Amended Complaint (ECF No. 60, “Complaint”)

are straightforward. Plaintiff is a mixed martial arts fighter who competes in the UFC.

Defendants’ Statement of Undisputed Material Facts (“SOF”) at ¶ 1. The UFC, like many other

professional sports organizations, subjects its athletes to a PED monitoring program that is

overseen by the United States Ani-Doping Agency (“USADA”). Id. ¶ 2. As part of his contract

with the UFC, Plaintiff agreed to submit to random PED tests administered by USADA. Id. ¶ 3.

Plaintiff underwent such a test on October 14, 2016. Id. ¶ 4. The results of that test were

provided to Plaintiff on October 24, 2016 and revealed that Plaintiff purportedly tested positive

for 1-androstenedione and its metabolite 1-(5α)-androsten-3α-o1-17-one. Id. ¶ 5 (Ex. 1 to

Declaration of David J. Marck, Esq. (‘Marck Decl.”) (Oct. 24, 2016 Notice of Failed PED Test

from USADA to Plaintiff, bates stamped USADA-000008 to USADA-000029)). 1-

androstenedione is a banned PED and its presence in Plaintiff’s urine would have normally

resulted in a two year suspension from participation in the UFC (or any other sport governed by

USADA). Id. ¶ 6. Plaintiff alleges that the 1-androstenedione detected in his urine was not the

1
The undisputed facts recited herein are drawn from and set forth in Defendants’ Statement of
Undisputed Materials Facts, pursuant to Local Civil Rule 56.1.

3
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 9 of 26

result of taking any banned PED, but rather, was caused by his supposed ingestion of Anavite, a

multivitamin sold by GNI and manufactured for GNI by Hi-Tech. Id. ¶ 7.

Prior to submitting a urine test to USADA’s agent, however, an athlete is required to

complete a “Declaration of Use,” which sets forth the “prescription/non-prescription

medications, any infusions and/or injections, dietary supplements and/or other substances taken

in the last seven (7) days (including: vitamins, minerals, herbs, proteins, amino acids, and any

other dietary supplements).” Id. ¶ 24 (Marck Decl. Ex. 8 (Plaintiff’s USADA Declaration of Use,

bates stamped USADA-000156 to USADA-000162)). The USADA Declaration expressly states:

“By signing below I certify that I have reviewed the substances and methods, if any, listed on

this declaration. I confirm that it fully and accurately represents my declaration to the USADA

Doping Control Office and that my declaration is truthful and complete.” Id. ¶ 25.

In Plaintiff’s case, he listed over a dozen supplements, including another multivitamin.

Id. ¶ 26. Anavite was not listed on Plaintiff’s USADA declaration. Id. ¶ 27. While his test results

were pending, Plaintiff did not inform USADA that his declaration was incorrect or incomplete.

Id. ¶ 28. And, even after he was informed of his failed PED test, Plaintiff’s counsel emailed

USADA to modify his declaration to include a dietary supplement named Cordygen Ultra, but

not Anavite. Id. (Marck Decl. Ex. 9 (10/25/16 Email from D. Fish to O. Ikwuakor of USADA

stating that “[t]his is the only product we believe was not in Lyman’s declaration,” bates stamped

USADA-000325 to USADA-000326)). Obviously, Plaintiff’s case has serious threshold factual

issues that, when viewed in light of the dearth of other evidence supporting his claims, militate

towards the entry of summary judgment and the dismissal of his claims.

B. Plaintiff is Constrained to Proceeding on a Design Defect Theory

Plaintiff’s theory of liability from the outset of this case has been confusing. As the Court

noted during oral argument on Defendants’ spoliation motion, Plaintiff’s Second Amended

4
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 10 of 26

Complaint can be read to allege that: (1) Defendants intentionally spiked Anavite with 1-

androstenedione, (2) Anavite was defectively designed such that each bottle of Anavite produced

was adulterated with 1-androstenedione, or (3) the bottle of Anavite that Plaintiff was supposedly

taking in October 2016 was defectively manufactured and was tainted with 1-androstenedione.

See SOF ¶ 23 (Marck Decl. Ex. 7 (August 19, 2019 Hearing Tr. at 9:10-11:22)). The Court,

however, pressed Plaintiff’s counsel on this issue, who admitted that Plaintiff had “no evidence

of intentional spiking.” Id. at 11:11. After further colloquy with Plaintiff’s counsel, the Court

determined that Plaintiff was proceeding “on a design defect theory, not a manufacturing-defect

theory” and that this “judicial admission will bind Plaintiff throughout this case.” Id. at 17:18-

18:1.

C. Plaintiff’s Expert Report is Stricken and His Expert is Barred from Testifying

By an order dated October 31, 2019, the Court precluded Plaintiff’s expert, Shawn Wells,

from offering his report or testifying in this matter. ECF No. 125. As a result, Plaintiff has no

expert witness that can testify on any matter in this case. This deficiency is fatal to many of

Plaintiff’s claims and requires the entry of summary judgment in Defendants’ favor on those

claims.

III. LEGAL STANDARD

Pursuant to Rule 56, a motion for summary judgment should be “granted ‘if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to [the absence or presence of] any

material fact.’” Roman v. Sprint Nextel Corp., No. 12-CV-276 VEC, 2014 WL 5026093, at *12

(S.D.N.Y. Sept. 29, 2014) (quoting Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2004).

“Where the movant shows a prima facie entitlement to summary judgment, ‘the burden shifts to

the nonmovant to point to record evidence creating a genuine issue of material fact.’” Lara v.

5
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 11 of 26

Delta Int'l Mach. Corp., 174 F. Supp. 3d 719, 739 (E.D.N.Y. 2016) (quoting Salahuddin v.

Goord, 467 F.3d 263, 273 (2d Cir. 2006). “Summary judgment is mandated if the non-moving

party fails to make a showing sufficient to establish the existence of an element essential to that

party’s case and on which that party will bear the burden of proof at trial.” Id. (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

Moreover, “[t]he Court need only consider admissible evidence when adjudicating a

motion for summary judgment.” Lara v. Delta Int'l Mach. Corp., 174 F. Supp. 3d 719, 739

(E.D.N.Y. 2016) (citing Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013)). As a result, “the

trial court should not consider testimony of an expert it has found to be unreliable in evaluating a

motion for summary judgment.” Porter, 722 at 97; Colon ex rel. Molina v. BIC USA, Inc., 199 F.

Supp. 2d 53, 68 (S.D.N.Y. 2001) (“If a proffer of expert testimony is excluded as inadmissible

pursuant to Rule 702, the court must make the summary judgment determination on a record that

does not include that evidence.”). Finally, in a diversity action such as this, “New York law

governs all issues presented by the motion for summary judgment.” McCarthy v. Olin Corp., 119

F.3d 148, 153 (2d Cir. 1997) (applying New York law to products liability action against out-of-

state defendants).

IV. ARGUMENT

The Second Amended Complaint contains eight causes of action that fall under five

theories: (1) breach of express warranty (count one); (2) breach of implied warranty (counts two

and three); (3) statutory violations of N.Y. Gen. Bus. L. §§ 349 and 350 (counts four and five);

(4) strict liability (count six); and (5) negligence (counts seven and eight). All of these claims

must be dismissed because Plaintiff will be unable able to muster any admissible evidence that

Anavite was adulterated with 1-androstenedione, which is an essential element of all of those

6
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 12 of 26

claims. Additionally, Plaintiff’s claims based on three of those theories (breach of implied

warranty, strict liability, or negligence) must be dismissed because Plaintiff lacks the expert

testimony required to prove these claims.

A. Plaintiff Lacks Any Admissible Evidence that Anavite Contains 1-


Androsetnedione

1) 1-Androsetnedione and Androstenedione are Not Interchangeable

Plaintiff’s failed PED test administered by USADA detected 1-androstenedione and its

metabolite 1-(5α)-androsten-3α-o1-17-one. SOF ¶ 5 (Marck Decl. Ex 1(Oct. 24, 2016 Notice of

Failed PED Test from USADA to Plaintiff, bates stamped USADA-000008 to USADA-

000029)). 1-androstenedione is the common name for “5α-1-androstene-3,17-dione,” which is an

androstane analog with an α-bonded hydrogen on carbon 5, a double bond between carbons 1

and 2, and double-bonded oxygens at carbons 3 and 17. Id. ¶ 8 (Marck Decl. Ex. 2 at ¶ 32

(Expert Report of Steve J. Bannister, Ph.D., dated December 7, 2018)). It is a banned PED that is

exogenous, meaning that it is not produced by the human body. Rather, it must be ingested in

order to be detected in a urine sample. Id. ¶ 9 (Marck Decl. Ex. 3 at ¶¶ 4, 45, 53 (Expert Report

of Matthew C. Lee, MD, RPh, MS, dated December 21, 2018)).

By contrast, androstenedione is the common name used for “4-androstene-3,17-dione,”

which is an androstane analog with a double bond between carbons 4 and 5 and double-bonded

oxygens on carbons 3 and 17. Id. ¶ 10 (Marck Decl. Ex. 2 at ¶ 31 (Expert Report of Steve J.

Bannister, Ph.D., dated December 7, 2018)). Androstenedione is produced by the human body

and is usually present within a certain range when measured in blood or urine tests. Id. ¶ 11

(Marck Decl. Ex. 3 at ¶¶ 26-42 (Expert Report of Matthew C. Lee, MD, RPh, MS, dated

December 21, 2018)). Androstenedione cannot be converted into 1-androstenedione in the

human body. Id.

7
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 13 of 26

Critically, Plaintiff did not fail his PED test due to an overabundance of androstenedione.

Rather, he failed his PED test because USADA’s lab detected 1-androstenedione and its

metabolite in his urine. Id. ¶ 5 (Marck Decl. Ex. 1 (Oct. 24, 2016 Notice of Failed PED Test

from USADA to Plaintiff, bates stamped USADA-000008 to USADA-000029)). Accordingly,

only 1-androstenedione is relevant to this case.2

2) Plaintiff will Not be Able to Offer Any Admissible Evidence that


Anavite Contains 1-Androstenedione

All of Plaintiff’s causes of action, regardless of the underlying legal theory, fail at

summary judgment unless Plaintiff is able to create a genuine factual dispute as to whether

Anavite contained 1-androstenedione. As Defendants explained in their prior briefing, multiple

lots of Anavite have been analyzed by five different laboratories to determine if Anavite contains

1-androstenedione, and only one of those analyses––SMRTL’s––indicated that a single lot of

Anavite might contain 1-androstenedione. See ECF No. 96 at 7. Significantly, the Anavite tested

by SMRTL was not the Anavite that Plaintiff claims to have purchased or supposedly consumed.

Those results, however, are inadmissible hearsay that do not fall within any pertinent exception.

As such, Plaintiff is left without any admissible evidence that Anavite is adulterated with 1-

androstenedione and his Second Amended Complaint must be dismissed in its entirety.

Whether a piece of evidence is admissible does not change depending on whether it is

presented at summary judgment or trial. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)

(“The principles governing admissibility of evidence do not change on a motion

for summary judgment.”). Instead, “[b]ecause the purpose of summary judgment is to weed out

2
The import of this point is that Plaintiff’s inevitable citation to the supposed detection of
androstenedione by a laboratory named LGC Science, Inc., is irrelevant to this matter and cannot
be used to create an issue of fact as to whether Anavite contains 1-androstenedione, which is the
only PED detected in Plaintiff’s urine and the reason for his suspension by the UFC. To be clear,
the only bottle of Anavite that Plaintiff had tested was confirmed to be free of 1-androstenedione.

8
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 14 of 26

cases in which ‘there is no genuine issue as to any material fact and [whether] the moving party

is entitled to a judgment as a matter of law,’ Fed.R.Civ.P. 56(c), it is appropriate for district

courts to decide questions regarding the admissibility of evidence on summary judgment.” Id.;

Community of Roquefort v. William Faehndrich, Inc., 303 F.2d 494, 498 (2d Cir. 1962) (“Since

the object [of summary judgment] is to discover whether one side has no real support for its

version of the facts, the Rule specifically states that affidavits shall ‘set forth such facts as would

be admissible in evidence.’”); Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 68

(S.D.N.Y. 2001) (“Pursuant to Rule 104(a), the court must evaluate evidence

for admissibility before it considers that evidence in ruling on a summary judgment motion.”).

Thus, “only admissible evidence need be considered by the trial court in ruling on a motion for

summary judgment.” Raskin, 125 F.3d at 66; Sarno v. Douglas Elliman–Gibbons & Ives, Inc.,

183 F.3d 155, 160 (2d Cir. 1999) (hearsay not competent evidence in opposition to a motion for

summary judgment).

i. The Sports Medicine Research and Testing Laboratory


Reports are Hearsay

Plaintiff’s entire case rests upon two pages of an unauthenticated hearsay document that,

when properly excluded, requires the dismissal of Plaintiff’s case. On or about March 29, 2017,

Sports Medicine Research and Testing Laboratory (“SMRTL”), based in Salt Lake City Utah,

allegedly provided in an unauthenticated document the results of its analyses of the contents of

two bottles of Anavite from Anavite Lot # 164150475 to USADA. SOF ¶ 13 (Marck Decl. Ex. 5

(SMRTL Confidential Test Reports dated March 28, 2017, and bates stamped

USADA00000983-989)). The unauthenticated results that SMRTL reported conflict with one

another. SOF ¶ 14. The first analysis (Lab ID #393460/Report ID: USADA-20170224-01-

4415008, bates stamp USADA00000984) concluded that 1-androstenedione was supposedly

9
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 15 of 26

present in Anavite at the level of 370 nanograms of 1-androstenedione per Anavite tablet. Id.

SMRTL’s analysis of another bottle (Lab ID # 394624/Report ID: USADA-20170307-01-

4415007, bates stamp USADA00000987) from that same lot concluded that there was allegedly

850 nanograms of 1-androstenedione per Anavite tablet.3 Id.

The unauthenticated SMRTL test reports are classic hearsay evidence that cannot be

considered by the Court. “Hearsay is any out-of-court statement offered to prove the truth of the

matter asserted in the statement.” Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013). “Rule

802 provides that hearsay is inadmissible unless made admissible by a federal statute, the Federal

Rules of Evidence, or other rules prescribed by the Supreme Court.” Id. The SMRTL test reports

are hearsay because they are written statements that Plaintiff will be offering to prove the truth of

the matter asserted (i.e., that the bottles of Anavite tested by SMRTL contained 1-

androstenedione), made without the declarant (e.g., the lab technician or someone similarly

situated at SMRTL) testifying based on their personal knowledge to corroborate the assertions

made and the basis for making those assertions. As explained immediately below, Plaintiff

cannot call any witnesses from SMRTL, which dooms his ability to admit this piece of hearsay

evidence.

3
Obviously, the conflicting results are reason enough to doubt SMRTL’s conclusions, especially
when compared to the multiple other analyses that Defendants had performed on Anavite which
found it to be free of 1-androstenedione. See ECF No. 96 at 7. Moreover, the SMRTL test reports
are void of any information about the testing method used or any of the supporting information
that could support the results (e.g., chromatograms, information on equipment used, source of
standards used, name of laboratory technician, etc.). Regardless of these facial deficiencies, the
weight to be accorded SMRTL’s findings is not the question for the Court at this juncture.
Rather, the Court must first conclude whether there is any basis to even consider SMRTL’s
results.

10
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 16 of 26

ii. The Business Records Hearsay Exception Does Not Apply to


the SMRTL Reports

Plaintiff will likely argue that the SMRTL test reports fit within the business records

exception to the hearsay rule. Plaintiff will be incorrect. The SMRTL test reports do not meet the

requirements of Federal Rule of Evidence 803(6) and Plaintiff will not be able to call any

witnesses at trial that could mitigate those deficiencies. See Auz v. Century Carpet, Inc., No. 12

Civ. 417 (LGS), 2014 WL 199511, at *1 (S.D.N.Y. Jan. 17, 2014) (admission of hearsay

evidence at summary judgment only proper “if the contents would otherwise be admissible at

trial.”).

Rule 803(6) states that a “record of an act, event, condition, opinion, or diagnosis is

admissible,” even if the declarant is unavailable, so long as the following requirements are met:

(A) the record was made at or near the time by––or from information
transmitted by––someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule
902(11)or (12) or with a statute permitting certification; and

(E) the opponent does not show that the source of information or the method
or circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(16).

“The purpose of the rule is to ensure that documents were not created for ‘personal

purpose[s] . . . or in anticipation of any litigation’ so that the creator of the document ‘had no

motive to falsify the record in question.’” United States v. Kaiser, 609 F.3d 556, 574 (2d Cir.

2010) (quoting United States v. Freidin, 849 F.2d 716, 719 (2d Cir. 1988).

11
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 17 of 26

A detailed review of the SMRTL test reports reveals their irredeemably hearsay nature

and the manner in which they fail to fulfill the business records exception. The unauthenticated

SMRTL test reports as to Anavite consist of three pages of information in total. The first is a

cover email dated March 29, 2017 from Ryan Van Wagoner, Senior Scientist at SMRTL, to

Onye Ikwuakor, an attorney that works for USADA. SOF ¶ 15 (Marck Decl. Ex. 4 (SMRTL

Confidential Test Reports at USADA00000983). That cover email states that Mr. Van Wagoner

is sending Mr. Ikwuakor “sample analysis report[s] for several samples sent to us a few weeks

back.” Id. ¶ 16. The email attached, among other non-responsive reports, two unauthenticated

“Confidential Test Reports” on “Gaspari Nutrition Anavite.” Id. ¶ 17 (Lab ID #393460/ Report

ID: USADA-20170224-01-4415008, bates stamp USADA00000984; Lab ID # 394624/ Report

ID: USADA-20170307-01-4415007, bates stamp USADA00000987). Id. As noted above, those

unauthenticated test reports are summary at best: there is no information about the lab technician

that performed the analysis, what method or equipment was used, how the samples were

prepared, or any information whatsoever related to chain-of-custody issues. Id. ¶ 18.

Critically, Plaintiff cannot demonstrate that the business records exception applies—or to

even discuss the substance of the reports such that they should not be considered hearsay in the

first instance—because he will be barred at trial from calling anyone from SMRTL about its

analyses of Anavite. Plaintiff will be barred from doing so because he has failed to include

anyone from SMRTL on his Rule 26(a) initial disclosures that might be able to lay a foundation

of any sort as to the genesis of these reports. Id. ¶ 19 (Marck Decl. Ex. 5 (Plaintiff’s Rule 26

Initial Disclosures, dated December 28, 2017)); see also Fed. R. Evid. 803(6) (business record

exception only applies to hearsay document when “all these conditions [of the exception] are

shown by the testimony of the custodian or another qualified witness”).

12
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 18 of 26

Plaintiff has never amended or supplemented these disclosures as required by Rule 26(e),

nor did he amend them via his interrogatories, SOF ¶ 20 (Marck Decl. Ex. 6 (Plaintiff’s

Responses to Defendants’ Interrogatories, dated May 17, 2018)), so he is therefore limited to

listing the persons therein on his witness list for trial. See Fed. R. Civ. P. 37(c)(1) (“If a party

fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not

allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a

trial, unless the failure was substantially justified or is harmless.”) (emphasis added); Wright &

Miller, § 2053 Initial Disclosure, 8A Fed. Prac. & Proc. Civ. § 2053 (3d ed.) (“When a party has

not provided disclosure as required by Rule 26(a)(1), Rule 37(c)(1) directs courts to deny use of

the information by the party that failed to provide the disclosure. That rule is explicit in saying

that a party who fails to disclose a witness or document as required by Rule 26(a)(1), or to

provide information on a witness or documents in supplemental disclosures required by Rule

26(e)(1), not be allowed to use such evidence at trial unless the failure is substantially justified

or harmless.”) (emphasis added). Indeed, the Advisory Committee Note to Rule 37 describes this

limitation as an “automatic sanction [that] provides a strong inducement for disclosure of

material that the disclosing party would expect to use as evidence.” (Emphasis added).

Fact discovery in the matter ended in November 2018. SOF ¶ 21; ECF No. 76. Plaintiff

has never sought to reopen it and the record is therefore set. SOF ¶ 22. Without the ability to call

any witness from SMRTL, Plaintiff will be unable to introduce the test reports by way of the

technician who performed the test or otherwise demonstrate that the SMRTL test reports fall

within the business records exception. Fed. R. Evid. 803(6)(D) (requiring that each of the

requirements for the business record exception must be “shown by the testimony of the custodian

or another qualified witness.”); see Century Pac., Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d

13
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 19 of 26

206, 216 (S.D.N.Y. 2007), aff’d, 354 F. App’x 496 (2d Cir. 2009) (concluding that business

record exception did not apply because “no foundation has been laid that these notes were kept

or recorded in the course of a regularly conducted business activity”).

Here, without the proper foundational/custodial testimony, it is impossible to determine if

the SMRTL test reports “were made at or near the time by––or from information transmitted––

someone with knowledge” of the testing that took place. Fed. R. Evid. 803(6)(A). It will

similarly be impossible to conclude whether the test reports were “kept in the course of a

regularly conducted activity of a business,” Rule 803(6)(B), or that making such “records was a

regular practice” of SMRTL, Rule 803(6)(C). Simply put, Plaintiff cannot meet the requirements

of the business records exception and will be barred from admitting the SMRTL test reports at

trial.4 As such, he cannot rely on it in his opposition to this motion and summary judgment

should be entered dismissing the entire Second Amended Complaint with prejudice because the

SMRTL reports are the only piece of “evidence” that supposedly supports Plaintiff’s claims that

Anavite is adulterated with 1-androstenedione.5

4
Plaintiff also failed to obtain a Fed. R, Evid. 902(11) certification from SMRTL, which, in any
event, Defendants could contest due to the fact that the central issue in this litigation is whether
1-androstenedione was present in the Anavite tested by SMRTL.
5
There is an additional reason the business record exception should not apply, in addition to
Plaintiff’s inability to lay the proper foundation. As the Supreme Court has explained,
“[d]ocuments kept in the regular course of business may ordinarily be admitted at trial despite
their hearsay status, . . . [b]ut that is not the case if the regularly conducted business activity is
the production of evidence for use at trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321
(2009). “In that circumstance, the hearsay rules bar admission of even business records.”
Bullcoming v. New Mexico, 564 U.S. 647, 670 (2011). The Court can take judicial notice that
USADA is quasi-judicial organization that regularly engages in litigation/arbitration with
athletes. As part of that litigation, USADA relies on scientific reports such as those generated by
SMRTL.

14
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 20 of 26

B. Plaintiff Cannot Rely on Double Hearsay from USADA about Anavite’s


Contents

Plaintiff may also attempt to generate an issue of fact as to the supposed adulteration of

Anavite by citing to various statements made by USADA regarding the contents of Anavite or its

placement on USADA’s “High-Risk List” of dietary supplements. See. Pl.’s SAC ¶¶ 54-67 (ECF

No. 60). The Court must reject that attempt as it is nothing more than Plaintiff attempting to

inject SMRTL’s hearsay findings via the backdoor, which is clearly improper. See Rodriguez v.

Modern Handling Equip. of NJ, Inc., 604 F. Supp. 2d 612, 622 (S.D.N.Y. 2009)

(“Inadmissible hearsay does not become admissible solely by virtue of its inclusion in an

admissible report.”) (citing Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991));

Agriculture Ins. Co., Inc. v. Ace Hardware Corp., 214 F.Supp.2d 413, 416 (S.D.N.Y. 2002)

(“Double hearsay is not admissible unless each level of hearsay is covered by an exception to the

hearsay rule.”).

Here, because any statement that USADA may make regarding the contents of Anavite or

its status with USADA are based on SMRTL’s supposed findings (SMRTL was retained by

USADA and received the hearsay testing reports from it) regarding Anavite, those statements

must be rejected because there is zero evidence in the record that any one from USADA has any

personal knowledge regarding the testing conducted by SMRTL on Anavite. Regardless of what

a witness from USADA may testify to (assuming they are permitted to testify), it will not alter

the fact that the underlying information contained in SMRTL’s report is inadmissible hearsay

evidence that cannot be admitted to create an issue of fact as to the contents of Anavite.

C. Admissible Evidence of the Adulteration of Anavite with 1-Androstenedione


is an Essential Element of Each of Plaintiff’s Claims

All of Plaintiff’s claims, in one form or another, require Plaintiff to present affirmative

and admissible evidence of Anavite’s adulteration in order to survive summary judgment.

15
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 21 of 26

Plaintiff’s claims can be split up into two larger groups, each of which share very similar

elements. The first set are Plaintiff’s claims that are based on the theories of breach of implied

warranty, strict liability, or negligence (Counts Two, Three, Six, Seven and Eight). The second

set are Plaintiff’s statutory consumer fraud claims that allege a violations of N.Y. Gen. Bus. L.

§§ 349 and 350 (Counts Four and Five), along with Plaintiff’s claims for breach of express

warranty (Count One). Because Plaintiff lacks admissible evidence of Anavite’s adulteration

with 1-androstenedione, he will be unable to create an issue of fact as to an essential element of

each of these sets of claims.

1) Plaintiff’s Design Defect Based Product Liability Claims Must Be


Dismissed

i. Plaintiff’s Lacks Any Evidence that Anavite was Defectively


Designed

Plaintiff’s claims that are based on the theories of breach of implied warranty, strict

liability, or negligence (Counts Two, Three, Six, Seven and Eight) each share the same prima

facie elements and must be dismissed due to his inability to create an issue of fact as to whether

Anavite was defectively designed (e.g., that it contains 1-androstenedione, contrary to the label).

Lara, 174 F. Supp. 3d at 740 (“In order to establish a prima facie case with regard to any of these

. . . theories, the plaintiff must show that the product at issue was defective and that the

defectively designed product was the actual and proximate cause of the plaintiff’s injury.”)

(emphasis added) (citing Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107 (1983)); Fuentes

v. Scag Power Equip.-Division of Metalcraft of Mayville, Inc., No. 2:17-cv-825 (DRH)(AKT),

2019 U.S. Dist. LEXIS 136802, at *28 (E.D.N.Y. Aug. 13, 2019) (“If a plaintiff cannot make out

a claim for strict products liability, then the breach of implied warranty claim will not stand.”).

16
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 22 of 26

Clearly, if Plaintiff cannot even create an issue of fact as to whether Anavite contains 1-

androstenedione, he is surely unable to demonstrate that it is defectively designed. As such,

Defendants are entitled to summary judgment on these claims. See Delehanty v. KLI, Inc., 663 F.

Supp. 2d 127, 134 (E.D.N.Y. 2009) (granting summary judgment to defendants after Plaintiff

failed to “establish facts sufficient to establish . . . that the [product in question was] defectively

designed”); Barban v. Rheem Textile Sys., Inc., No. 01-CV-8475 (ILG), 2005 WL 387660, at *8

(E.D.N.Y. Feb. 11, 2005), aff'd, 147 F. App'x 222 (2d Cir. 2005) (holding that plaintiffs in

design defect cases are “under an obligation to present evidence that the product, as designed,

was not reasonably safe because there was a substantial likelihood of harm . . . .”) (citing Voss,

59 N.Y.2d at 108).

ii. Plaintiff’s Lack of an Expert Provides Additional Grounds to


Dismiss Counts Two, Three, Six, Seven, and Eight

Plaintiff’s claims based on the theories of breach of implied warranty, strict liability, or

negligence must also be dismissed because he lacks the expert testimony required of a plaintiff in

a design defect case. Counts Two, Three, Six, Seven and Eight are all based upon a design defect

theory and share the requirement that Plaintiff must demonstrate that Anavite was defectively

designed and caused him injury. Plaintiff will be unable to meet that burden because Plaintiff has

no expert, which is a threshold requirement for a design defect claim under New York Law.

Lara, 174 F. Supp. 3d at 740 (“In order to prove liability grounded upon a design defect, New

York law requires plaintiffs to proffer expert testimony as to the feasibility and efficacy of

alternative designs.”); Cuntan v. Hitachi KOKI USA, Ltd., No. 06–CV–3898, 2009 WL

3334364, at *6 (E.D.N.Y. Oct 15, 2009) (same and collecting cases); Frazer v. ITW Food

Equip. Grp. LLC, No. 11 CV 9699, 2013 WL 6164486, at *5 (S.D.N.Y. Nov. 22, 2013) (holding

17
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 23 of 26

that “[a] party cannot survive summary judgment on a design defect claim without admissible

expert testimony”).

Here, the Court has recently held that Plaintiff’s expert, Shawn Wells, is barred from

testifying and that his report is stricken from the record. ECF No. 125. The Court reached this

conclusion due to Mr. Wells’ lack of qualifications and because his report/opinions were not

supported by the proper expertise, were not based on reliable methods, or otherwise relevant to

the facts in this case. See generally, id. For this reason, too, Plaintiff’s Counts Two, Three, Six,

Seven and Eight must be dismissed with prejudice.

2) Plaintiff’s Statutory Claims and Express Warranty Claim Must Be


Dismissed

Both “Sections 349 and 350 of the New York General Business Law prohibit ‘[d]eceptive

acts or practices’ and ‘false advertising’ ‘in the conduct of any business.’ N.Y. Gen. Bus. Law §§

349(a), 350. To state a claim under either section, Plaintiff must adequately allege three

elements: (1) ‘the challenged act or practice was consumer-oriented’; (2) the act or practice ‘was

misleading in a material way’; and (3) ‘the plaintiff suffered injury as result of the deceptive act.’

Dash v. Seagate Tech. (U.S.) Holdings, Inc., 27 F. Supp. 3d 357, 360 (E.D.N.Y. 2014) (quoting

Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000). Similarly, “New York breach of express

warranty claims require (I) a material statement amounting to a warranty; (ii) the buyer’s reliance

on this warranty as a basis for the contract with his immediate seller; (iii) the breach of this

warranty; and (iv) injury to the buyer caused by the breach.” Avola v. Louisiana–Pacific Corp.,

991 F.Supp.2d 381, 391 (E.D.N.Y.2013) (citing CBS Inc. v. Ziff–Davis Pub. Co., 75 N.Y.2d 496,

554 N.Y.S.2d 449, 553 N.E.2d 997, 1000–01 (1990)); Avola v. Louisiana-Pac. Corp., 991 F.

Supp. 2d 381, 391 (E.D.N.Y. 2013) (“The elements for New York false advertising claims are

similar” to those of breach of express warranty).

18
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 24 of 26

Although the determination of whether an act or practice was deceiving “is typically a

question of fact,” Dash, 27 F. Supp. 3d at 360, here there are no facts to weigh as Plaintiff lacks

any admissible evidence that Anavite was adulterated and that Defendants therefore engaged in

any deception, material or otherwise, about Anavite’s contents. Lacking such basic, threshold

evidence, Plaintiff cannot create an issue of fact regarding Counts One, Four, and Five, and the

Court must grant Defendants summary judgment dismissing these claims with prejudice.

Moreover, and at a minimum, Plaintiff’s claims for treble damages related to his statutory

claims must be dismissed as he admittedly has “no evidence of intentional spiking.” August 19,

2019 Hearing Tr. at 11:11. Lacking such evidence, these enhanced damages are not available to

Plaintiff. See N.Y. Gen. Bus. Law §§ 349(h) (“The court may, in its discretion, increase the

award of damages to an amount not to exceed three times the actual damages up to one thousand

dollars, if the court finds the defendant willfully or knowingly violated this section.”); 350-e

(“The court may, in its discretion, increase the award of damages to an amount not to exceed

three times the actual damages, up to ten thousand dollars, if the court finds that the defendant

willfully or knowingly violated this section.”); Oswego Laborers’ Local 214 Pension Fund v.

Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 647 N.E.2d 741, 745 (1995) (“Although it is not

necessary under the statute that a plaintiff establish the defendant's intent to defraud or mislead,

proof of scienter permits the court to treble the damages up to $1,000.”).

D. Plaintiff’s Claims For Punitive Damages Must Be Dismissed

Plaintiff cannot prove that Defendants’ alleged conduct merits the award of punitive

damages. Under New York law, punitive damages are only available “where the breach of

contract also involves a fraud evincing a ‘high degree of moral turpitude’ and demonstrating

‘such wanton dishonesty as to imply a criminal indifference to civil obligations’ [and] if the

conduct was ‘aimed at the public generally.’” Rocanova v. Equitable Life Assurance Soc’y, 83

19
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 25 of 26

N.Y.2d 603, 613 (N.Y. 1994) (quoting Walker v. Sheldon, 10 N.Y.2d 401, 404 (N.Y. 1961)

(emphasis added). As Plaintiff’s counsel admitted, there is “no evidence of intentional spiking”

here. August 19, 2019 Hearing Tr. at 11:11. This concession cuts directly against the notion that

Defendants’ conduct rose to the level of or displayed a high-degree of moral turpitude.

Consequently, Plaintiff punitive damages claim should be dismissed.

V. CONCLUSION

For the reasons stated above, the Court should grant Defendants’ Motion for Summary

Judgment and dismiss Plaintiff’s Second Amended Complaint with prejudice.

Respectfully submitted,

Dated: December 6, 2019 By: s/ Jack Wenik

Jack Wenik, Esq.


Robert M. Travisano, Esq.
David J. Marck, Esq.
EPSTEIN BECKER & GREEN
Attorneys for Defendants
GASPARI NUTRITION, INC., and HI-
TECH PHARMACEUTICALS, INC.
One Gateway Center, 13th Floor
Newark, New Jersey 07102
(973) 642-1900

875 Third Avenue


New York, NY 10022
(212) 351-4500

s/ Arthur W. Leach
Arthur W. Leach, Esq.
Admitted pro hac vice
LAW OFFICE OF ARTHUR W. LEACH
Attorney for Defendants
GASPARI NUTRITION, INC., and,
HI-TECH PHARMACEUTICALS, INC.
4080 McGinnis Ferry Road
Suite 401
Alpharetta, GA 30005
(404) 786-6443

20
Case 1:17-cv-08047-VEC Document 126-1 Filed 12/06/19 Page 26 of 26

s/ Vincent Pozzuto
Vincent P. Pozzuto, Esq.
Rachel H. Bevans, Esq.
COZEN O’CONNOR
Attorneys for Defendant
VITAMIN SHOPPE, INC.
45 Broadway Atrium, 16th Floor
New York, New York 10006
(212) 509-9400

21

You might also like