Racies v. Quincy Bioscience, LLC

Background

The court addressed the parties’ remaining motions in limine, which are requests to decide before trial whether particular evidence or testimony may be presented, and two administrative motions to file materials under seal. The order concerned docket numbers 201, 202, 204, 205, 240, and 245. The court also struck Racies’s unauthorized response to Quincy’s offer of proof under Civil Local Rule 7-3(d).

Lori Osterheldt

The court granted Racies’s motion to exclude Lori Osterheldt as a witness. Quincy sought to present her as a fact witness about her personal experience purchasing and using Prevagen. The court found that Quincy timely disclosed her, so exclusion was not warranted under the disclosure rules on that ground. But the court held that her personal experience was irrelevant to the California consumer-protection claims. Those claims focus on whether a reasonable consumer would likely be deceived by Quincy’s representations, not whether individual consumers were satisfied with the product or what Quincy’s customers subjectively believed.

Dr. Patricia Falcone

The court granted Quincy’s motion to exclude Dr. Patricia Falcone. It found that Racies did not timely disclose her and had not shown that the delay was substantially justified or harmless, as required to avoid the usual consequence under Federal Rule of Civil Procedure 37. The court also held that her proposed testimony would be irrelevant even if she had been timely disclosed. Her reasons for purchasing Prevagen, what she relied on in deciding to purchase it, and how much she paid did not address the effect of the challenged claims on a reasonable consumer.

Mark Y. Underwood

The court granted Racies’s motion to exclude identified testimony by Mark Y. Underwood. Quincy proposed to have Underwood, its chief operating officer and founder, testify about scientific literature and articles that Quincy researched or relied on when developing Prevagen’s labeling claims. Underwood was not designated as an expert, so the court held that he could not offer opinions about scientific literature. The court also found that Quincy’s motivation or subjective assessment when developing its claims was not an element of the California Unfair Competition Law or Consumer Legal Remedies Act claims.

The court further held that any limited value of testimony about Quincy’s labeling process was outweighed by the risk of confusing or misleading the jury and unfairly prejudicing Racies under Federal Rule of Evidence 403. The court did not decide hypothetical future uses of the articles for purposes such as refreshing a witness’s recollection, rebuttal, or questioning an expert, stating that it would assess any such proposed use under the applicable evidence and disclosure rules.

FDA-investigation evidence

The court granted in part and denied in part Quincy’s motion to exclude evidence or argument concerning other lawsuits and government investigations. Racies stated that he did not intend to introduce evidence of other lawsuits but sought to introduce evidence concerning FDA investigations.

The court found Exhibits B, C, N, O, and P relevant and admissible to the issue of whether apoaequorin could survive digestion and cross the blood-brain barrier. The exhibits included Quincy’s submissions and correspondence to the Food and Drug Administration, a generally recognized as safe submission, and letters or expert materials concerning whether apoaequorin crossed the blood-brain barrier. The court treated statements offered against Quincy by Quincy, its attorneys, or retained experts as party admissions for purposes of the hearsay analysis.

The court excluded the appendices to the expert-panel report included in Exhibit N because they were not relevant to the trial issues and their limited value was outweighed by the risk of unfair prejudice. It also found Exhibits D through M irrelevant or inadmissible under Rule 403. Those exhibits concerned FDA communications about safety, early marketing, dietary-supplement status, and corrective actions, rather than whether Prevagen worked as represented. The court concluded that using those materials to suggest Quincy engaged in other wrongful conduct would create an impermissible propensity inference and would risk confusing the issues, misleading the jury, unfairly prejudicing Quincy, and wasting time.

Motions to seal

The court denied Racies’s two administrative motions to file portions of an offer of proof and certain exhibits under seal. Because the materials related to motions in limine, the court applied the lower “good cause” standard rather than the more demanding “compelling reasons” standard generally used for materials attached to dispositive motions. Quincy supported sealing by pointing to its confidentiality designations and asserted that some materials contained proprietary information about apoaequorin and confidential information submitted to the Food and Drug Administration.

The court held that a confidentiality designation alone was insufficient. It also found that the proposed redactions were not narrowly tailored, that some information was publicly available or unredacted elsewhere, and that Quincy had not adequately explained the specific harm that disclosure of each proposed redaction would cause. The court therefore denied the sealing motions and directed Racies to file public versions of the affected documents within seven days. The parties were permitted to file new sealing motions within seven days if they followed the requirements discussed in the order.

Disposition

The court granted Racies’s third and fourth motions in limine, granted in part and denied in part Quincy’s first motion in limine, granted Quincy’s second motion in limine, struck Racies’s response to Quincy’s offer of proof, and denied Racies’s administrative motions to file under seal.