Motion For Summary Judgment
Motion For Summary Judgment
Motion For Summary Judgment
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Page(s)
Cases
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Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009) .................................................................................................................14
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
Initial Disclosure, 8A Fed. Prac. & Proc. Civ. § 2053 § 2053 (3d ed.) .........................................13
Rule 37 ...........................................................................................................................................13
iii
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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
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
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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
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
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
(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
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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.
II. BACKGROUND1
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
Declaration of David J. Marck, Esq. (‘Marck Decl.”) (Oct. 24, 2016 Notice of Failed PED Test
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.
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result of taking any banned PED, but rather, was caused by his supposed ingestion of Anavite, a
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,
“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.
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
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.
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
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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.
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.
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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
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
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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
Plaintiff’s failed PED test administered by USADA detected 1-androstenedione and its
Failed PED Test from USADA to Plaintiff, bates stamped USADA-000008 to USADA-
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
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
7
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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
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
lots of Anavite have been analyzed by five different laboratories to determine if Anavite contains
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.
presented at summary judgment or trial. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)
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.
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cases in which ‘there is no genuine issue as to any material fact and [whether] the moving party
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).
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-
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present in Anavite at the level of 370 nanograms of 1-androstenedione per Anavite tablet. Id.
4415007, bates stamp USADA00000987) from that same lot concluded that there was allegedly
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.
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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;
(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.
“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).
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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
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
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
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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
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
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
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
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
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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
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
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.
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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.
All of Plaintiff’s claims, in one form or another, require Plaintiff to present affirmative
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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
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
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.”).
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Clearly, if Plaintiff cannot even create an issue of fact as to whether Anavite contains 1-
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).
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
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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,
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
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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,
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
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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
V. CONCLUSION
For the reasons stated above, the Court should grant Defendants’ Motion for Summary
Respectfully submitted,
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
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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
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