In re Lyman Good Dietary Supplements Litigation

Background

This action concerned Plaintiff Lyman Good’s suspension from the Ultimate Fighting Championship after a drug test detected 1-androstenedione, also called 1-A, and its metabolite. The United States Anti-Doping Agency suspended Good for two years, later reduced to six months. Good alleged that he had consumed Anavite, a multivitamin sold and manufactured by Defendants, and that the supplement contained 1-A even though 1-A did not appear on its label.

Good asserted claims for breach of express warranty; breach of implied warranties of merchantability and fitness for a particular purpose; violations of New York General Business Law §§ 349 and 350; products liability under strict-liability and negligence theories; and general negligence. Defendants moved for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is appropriate when the record shows no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law.

Evidence concerning Anavite

The court explained that adulteration of Anavite was a key element of every claim. Good therefore needed admissible evidence that Anavite contained 1-A. In 2017, the Sports Medicine Research and Testing Laboratory analyzed two bottles of Anavite submitted by the United States Anti-Doping Agency. The laboratory reported detecting approximately 370 nanograms of 1-A per tablet in one bottle and approximately 850 nanograms per tablet in the other. The bottles were purportedly from the same lot, but the court noted that the reports did not explain the substantial difference in the reported amounts. Neither bottle was the bottle Good claimed to have consumed in 2016, because he had not preserved that bottle.

The court also noted that four other laboratories did not detect 1-A in Anavite. A separate laboratory detected androstenedione and dehydroepiandrosterone, but not 1-A; the court had previously explained that those substances are distinct from 1-A. The court had also previously excluded Good’s proposed expert testimony.

Hearsay and the business-record exception

The court ruled that the laboratory reports were hearsay: out-of-court written statements offered to prove that Anavite contained 1-A. Hearsay generally cannot be used unless an evidence rule or other legal authority makes it admissible.

Good argued that the reports qualified under the business-record exception. That exception can allow a record of an act, event, condition, opinion, or diagnosis into evidence when, among other requirements, it was made near the relevant time by someone with knowledge, kept as part of a regularly conducted business activity, made as a regular practice, and supported by testimony from a custodian or qualified witness or by a proper certification. The opposing party also may challenge the record’s trustworthiness.

The court found that Good could not satisfy these requirements through a trial witness. His initial disclosures did not identify anyone from the laboratory who could establish the necessary foundation, and he never supplemented those disclosures even though discovery remained open until November 2018. The court therefore concluded that he could not call a laboratory witness to authenticate the reports at trial. It rejected Good’s argument that his disclosure failure was substantially justified or harmless because he offered no explanation for the failure, the evidence was central to his claims, discovery had closed, and he had not requested that discovery be reopened.

The court also found that Good had not supplied a sufficient written certification. Good relied on an affidavit from Daniel Eichner, the laboratory’s president, that was signed in January 2020. The affidavit stated that the reports were made near the time of analysis by a person with knowledge and were kept during regularly conducted analysis, but it did not establish whether Eichner worked for the laboratory when the testing occurred or whether he had firsthand knowledge of the testing or the laboratory’s record-keeping procedures. The affidavit was also produced after discovery closed, leaving Defendants no opportunity to challenge it or depose Eichner. The court further found that an affidavit from a United States Anti-Doping Agency employee did not satisfy the certification requirement because it only verified that the transmitted reports and related correspondence were true copies.

Because Good could not establish the business-record foundation through testimony or certification, the court held that the laboratory reports were inadmissible hearsay and would not consider them on summary judgment. The court stated that it would also have been reluctant to admit reports addressing the central issue without testimony from a laboratory representative and an opportunity for cross-examination.

Ruling

The court concluded that, without the laboratory reports or expert testimony, Good had no evidence that Anavite contained 1-A. As a result, he could not prove that the product was defective or caused his injury for purposes of his warranty, strict-liability, and negligence claims. He also could not show that Defendants engaged in a materially misleading or deceptive act as required for his New York General Business Law claims.

Judge Valerie Caproni granted Defendants’ motion for summary judgment. The court directed the Clerk of Court to terminate the open motion at docket entry 126 and terminate the case.