In re: Elysium Health-Chromadex Litigation

Background

ChromaDex moved to exclude the opinions of Elysium’s survey expert, Brian Sowers, and damages rebuttal expert, Colin Weir. Elysium moved to exclude reports from ChromaDex’s survey expert, Bruce Isaacson; damages expert, Lance Gunderson; FDA-regulation expert, Steven Weisman; and clinical-studies expert, Kurt Hong. The motions relied primarily on Daubert and Federal Rule of Evidence 702, which require expert testimony to be relevant, based on sufficient information, produced by reliable methods, and reliably applied to the case.

The dispute arose from a false-advertising case involving ChromaDex’s Tru Niagen and Elysium’s Basis products. The experts addressed whether advertising conveyed allegedly misleading messages, whether those messages affected purchasing decisions, how damages might be calculated, the products’ regulatory status, and the scientific evidence concerning the products’ ingredients and safety.

Survey Experts

The court denied ChromaDex’s motion to exclude Brian Sowers’s survey testimony under the expert-evidence rules. Sowers surveyed potential purchasers of products supporting cellular health after showing them ChromaDex’s Tru Niagen webpage. The court held that his survey generally followed accepted research methods, used a suitable population and control group, and asked sufficiently neutral questions. Challenges concerning the wording of the questions, the surveyed population, and the webpage used were matters principally affecting the weight of the evidence rather than its admissibility. The opinion also notes that, in a separate accompanying order, the court excluded the survey under Rule 403 because it was no longer relevant to a remaining issue.

The court granted Elysium’s motion in part against Bruce Isaacson’s report. It excluded Isaacson’s conclusions that a “substantial percentage” of respondents reacted to the tested statements when those conclusions combined results for four different statements and categories of messages. The court held that deception and materiality had to be evaluated separately for each category of challenged statement, not collectively. The court also excluded Isaacson’s materiality survey. Its sequence of questions could have focused respondents disproportionately on particular messages, its control messages were not presented in a parallel manner, and its questions did not identify which part of a complex statement influenced purchasing decisions. These flaws made the survey too unreliable and confusing to assist the jury. The ruling did not exclude the individual survey percentages merely because Isaacson’s broader conclusions were excluded.

Damages Experts

The court granted Elysium’s motion to exclude Lance Gunderson’s damages opinions. Gunderson assumed that, without the challenged advertising, Elysium would have made no Basis sales and that all those sales would instead have gone to ChromaDex or its resellers. He did not analyze how individual statements affected Elysium’s sales or ChromaDex’s losses, did not account for Basis sales before the challenged statements, and did not adequately consider other product features, other advertising, customers who would not have bought a competing product, or alternative products. The court found that these unsupported assumptions did not reliably measure damages caused by the alleged advertising.

The court rejected ChromaDex’s effort to exclude Colin Weir’s regression analysis. Weir used a linear regression model examining Basis sales in relation to expenses, pricing, competition, Tru Niagen’s presence in the market, the challenged statements, time, and seasonality. The court held that his report and deposition testimony provided enough information to evaluate the model and that disputes over the data he used could be addressed through cross-examination. The court also held that the lack of additional analysis of correlations among the challenged statements did not require exclusion because the model found no effect from those statements. Weir’s criticism of Gunderson’s report was excluded or became moot because Gunderson’s report itself was excluded.

FDA-Regulation Expert

The court granted Elysium’s motion in part against Steven Weisman. It allowed Weisman to explain the general FDA regulatory frameworks for “Generally Recognized as Safe” status, or GRAS, and new-dietary-ingredient notifications. The court also allowed his opinions analyzing the regulatory pathways of Niagen and Basis, including his opinions concerning Elysium’s use of ChromaDex’s GRAS materials, the products’ differences, and the relevance of Elysium’s GRAS process for pterostilbene.

The court excluded a section that merely repeated ChromaDex’s allegations about Elysium’s advertising. It also excluded Weisman’s opinions that changes in Elysium’s manufacturers and specifications “may” require new assessments and that Elysium’s statements about good-manufacturing-practice compliance “may” be misleading. The court found those opinions too indefinite and speculative to help the jury. The court rejected Elysium’s remaining challenges addressed in the opinion, including its contention that Weisman withdrew or changed his opinion about Elysium’s GRAS process for NR.

Clinical-Studies Expert

The court granted Elysium’s motion in substantial part against Kurt Hong. It excluded Hong’s narrative history of NR, resveratrol, and pterostilbene because it largely repeated documents and facts that could be presented through fact witnesses and records. It also excluded his discussion of the products’ basic ingredient and dosage differences because it offered no specialized analysis beyond reciting facts.

The court excluded any opinion from Hong about what information might be important to consumers because his report provided no basis for conclusions about consumer views. It excluded his opinions that Elysium’s safety and toxicology studies were insufficient when those opinions were based only on his personal views. It also excluded his opinion about the lack of a synergistic effect between NR and pterostilbene on NAD+ levels because the opinion did not address the broader synergistic health claim at issue. His opinion that pterostilbene created significant safety concerns was excluded because the report did not adequately connect the cited study results to that conclusion. Finally, the court excluded his proposed testimony about California Proposition 65 because it merely applied the stated threshold to the reported acetamide levels and did not provide specialized assistance to the jury.

Disposition

The opinion concludes that both Daubert motions were granted in part and denied in part. The order concerned the admissibility of expert evidence and did not resolve whether either party ultimately prevailed on the underlying false-advertising claims. Judge Liman signed the opinion and order on February 11, 2022.