Montera v. Premier Nutrition Corporation

Background

This was a false-advertising class action alleging violations of New York General Business Law §§ 349 and 350 concerning Premier Nutrition Corporation’s promotion of Joint Juice dietary supplements. Premier moved to exclude testimony from witnesses it argued had not been timely disclosed under the federal discovery rules. The proposed witnesses fell into four groups: class representatives in other Joint Juice lawsuits, former spokespersons Joe Montana and Dean Karnazes, Jon Seiger, a member of the New York class, and various records custodians.

The dispute arose shortly before trial. Mary Beth Montera served disclosures on April 22, 2022, and a trial witness list on April 25, 2022. The related cases were scheduled to begin trial on May 23, 2022. Premier also argued that some witnesses were irrelevant or unfairly prejudicial under Federal Rules of Evidence 402 and 403.

Legal standard

Federal Rule of Civil Procedure 26 generally requires a party to identify people likely to have information that may support its claims or defenses. Rule 26 also requires timely supplementation when an earlier disclosure becomes materially incomplete or incorrect, unless the information was already made known during discovery or in writing. Under Rule 37, a witness who was not timely disclosed generally cannot testify at trial unless the failure was substantially justified or harmless.

In deciding whether a late disclosure was harmless, the court considered possible surprise or prejudice, whether the prejudice could be cured, the likelihood of disrupting trial, and whether the failure to disclose was done in bad faith or intentionally. Separately, evidence must be relevant, and relevant evidence may still be excluded if its value is substantially outweighed by risks such as unfair prejudice, confusion, misleading the jury, undue delay, or needless cumulative evidence.

Court’s analysis

Class representatives from related lawsuits. The court excluded Kathleen Sonner, Beverly Avery, Mary Trudeau, Sandra Dent, Donna Lux, Annette Ravinsky, Edward White, and Patricia Bland. Although the Joint Juice label and advertising were uniform nationwide, this trial concerned alleged violations of New York law experienced by New York consumers. The court therefore found testimony from purchasers in other states irrelevant.

Joe Montana and Dean Karnazes. The court granted the motion as to the two former spokespersons. Premier’s awareness of them during discovery came only from the advertisements in which they appeared. Montera did not show that prior references to them indicated they had other knowledge relevant to the case. The court also found that the late disclosure was neither substantially justified nor harmless because the witnesses could have been disclosed earlier and trial was less than three weeks away.

The court noted that the advertisements themselves were not irrelevant or unfairly prejudicial because they were relevant to Premier’s marketing strategies. The ruling addressed the proposed witness testimony, not an exclusion of those advertisements on the stated relevance and prejudice grounds.

Jon Seiger. The court excluded Seiger’s testimony. Montera appeared not to dispute that his disclosure was late, and argued that Premier could still depose him before trial. The court rejected that argument because Premier had already undertaken unexpected discovery after Montera was permitted to amend the complaint and because requiring a deposition of someone never identified in earlier discovery, less than two weeks before trial, would not be harmless.

Records custodians. The court denied the motion as to Benjamin Grimes, Jason Theodosakis, Chuck Ray, and the records custodians from Eleven Inc., Rain the Growth Agency, Known Global LLC, Curion LLC, and SurveyMonkey. Montera said she would call them only if Premier objected to admitting documents, and Premier had known about the documents during the litigation. The court found any disclosure failure harmless but limited the testimony: the custodians could be questioned only about matters relevant to establishing the documents’ admissibility. Premier could object at trial if questioning went beyond that purpose.

Disposition

Judge Richard Seeborg’s order denied Premier’s motion to exclude witnesses who were not timely disclosed as to the records custodians and granted it in all other respects.