Case 1:17-cv-08047-VEC Document 130 Filed 01/23/20 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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In re Lyman Good Dietary Supplements Litigation : 17-CV-8047 (VEC)
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DEFENDANTS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

EPSTEIN BECKER & GREEN COZEN O’CONNOR

Jack Wenik, Esq. (Bar ID: 2025641)
Robert M. Travisano, Esq. (Bar ID: 3909348)
David J. Marck, Esq. (Bar ID: 5081500)
Attorneys for Defendants
GASPARI NUTRITION, INC., and,
HI-TECH PHARMACEUTICALS, INC.
One Gateway Center, 13th Floor
Newark, New Jersey 07102
(973) 642-1900
Vincent P. Pozzuto, Esq. (Bar ID: 2730307)
Rachel H. Bevans, Esq. (Bar ID: 5345145)
Attorneys for Defendant
VITAMIN SHOPPE, INC.
45 Broadway Atrium, 16th Floor
New York, New York 10006
(212) 509-9400

875 Third Avenue

New York, NY 10022
(212) 351-4500

LAW OFFICE OF ARTHUR W. LEACH

Arthur W. Leach (admitted pro hac vice)
Attorney for Defendants
GASPARI NUTRITION, INC., and,
HI-TECH PHARMACEUTICALS, INC.
4080 McGinnis Ferry Road,
Suite 401
Alpharetta, GA 30005
(404)-786-6443 Oral Argument Requested
 Case 1:17-cv-08047-VEC Document 130 Filed 01/23/20 Page 2 of 14

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

I. ARGUMENT ...................................................................................................................... 1

A. Plaintiff Continues to Focus on Irrelevant Matters in an Attempt to Confuse the

Issues and the Court. ...................................................................................................... 1

B. The SMRTL Test Reports are Inadmissible Hearsay that Do Not Fall Within
the Business Records Exception..................................................................................... 2

1) The Conclusions Contained in the SMRTL Test Report are an Expert

Opinion that Cannot be Admitted via the Business Record Exception. ...................... 3

2) Plaintiff’s Newly Obtained Affidavits Do Nothing to Show that the SMRTL

Test Reports Are Trustworthy and Reliable. ............................................................... 5

3) Plaintiff’s Discovery Failures are Neither Justified Nor Harmless. ............................ 7

C. Plaintiff’s Remaining Arguments are Meritless. .......................................................... 10

II. CONCLUSION ................................................................................................................. 11

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TABLE OF AUTHORITIES

Page(s)

Cases

Abascal v. Fleckenstein,
820 F.3d 561 (2d Cir. 2016)...................................................................................................6, 7

Astoria Energy II LLC v. HH Valves Ltd.,

No. 17-CV-5724, 2019 WL 4120759 (E.D.N.Y. Aug. 2, 2019) .............................................10

Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993) ...............................................................................................................4, 5

Design Strategy, Inc. v. Davis,

469 F.3d 284 (2d Cir. 2006).................................................................................................9, 10

Fane v. Zimmer, Inc.,

927 F.2d 124 (2d Cir. 1991).......................................................................................................4

Ortho Pharm. Corp. v. Cosprophar, Inc.,

828 F. Supp. 1114, 1119 (S.D.N.Y. 1993), aff’d, 32 F.3d 690 (2d Cir. 1994) ..................3, 6, 7

Rienzi & Sons, Inc. v. N. Puglisi & F. Industria Paste Alientari S.P.A.,
No. 08-CV-2540 DLI JMA, 2011 WL 1239867 (E.D.N.Y. Mar. 30, 2011) ...........................10

Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC,

280 F.R.D. 147 (S.D.N.Y. 2012) ...............................................................................................8

Williams v. County of Orange,

No. 03 CIV 5182 (LMS), 2005 WL 6001507 (S.D.N.Y. Dec. 13, 2005)..................................8

Other Authorities

Federal Rule of Civil Procedure 37(c)(1) ....................................................................................7, 8

Federal Rule of Civil Procedure 26(a) .....................................................................................2, 7, 9

Federal Rule of Evidence 702 ..........................................................................................................4

Federal Rule of Evidence Rule 803(6).............................................................................................7

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Defendants Gaspari Nutrition, Inc. (“GNI”) Hi-Tech Pharmaceuticals, Inc. (“Hi-Tech”)

and Vitamin Shoppe, Inc. (collectively, “Defendants”), submit this reply memorandum of law in

further support of their motion for summary judgment.

I. ARGUMENT

The Court should enter summary judgment dismissing Plaintiff’s Second Amended

Complaint because he cannot show that Anavite was adulterated with 1-androstenedione, which

is the substance detected in Plaintiff’s failed performance enhancing drug (“PED”) test.

Plaintiff’s Opposition Brief is permeated with hyperbolic statements about why the rules of

evidence and procedure should not apply to him, but litigation in the federal courts is not a mixed

martial arts free-for-all. Rather, the rules of evidence and procedure––which Plaintiff has so

consistently flouted––exist to ensure the fair and reliable adjudication of disputes.

A. Plaintiff Continues to Focus on Irrelevant Matters in an Attempt to Confuse

the Issues and the Court.

As Defendants have explained in a series of filings––and the Court has agreed on

multiple occasions––this case revolves around 1-androstenedione and whether that substance

was present in the Anavite that Plaintiff supposedly took prior to his failed PED test in October

2016. See Defs.’ Spoliation Motion and Reply (ECF No. 85-1 at 7-8; ECF No. 96 at 4-6); Def.’s

Motion to Exclude Shawn Wells (ECF No. 97-1 at 13-16; ECF No. 116 at 6-7); Oral Opinion

Granting Spoliation Motion (Aug. 19, 2019 Tr. at 7:22-23 (“But it's also not the 1-Andro that

was in [Plaintiff’s] urine.”)); Opinion Granting Motion to Exclude S. Wells (ECF No. 125 at 9

(“Although the primary issue in this case is whether Plaintiff’s ingestion of Anavite caused the 1-

Andro that was detected in Plaintiff’s urine, a significant portion of the Wells Report—

paragraphs 2, 3, and 6-14—is devoted to discussing the presence of Andro and

Dehydroepiandrosterone (“DHEA”) in Anavite. . . . As a result, the portions of the Wells Report

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discussing the presence of DHEA and Andro in Anavite are irrelevant, unhelpful, and have the

potential to mislead or confuse a jury.”).

Plaintiff, however, continues to conflate 1-androstenedione with androstenedione and

DHEA in the hope of inflaming the Court about the supposed presence of these irrelevant

substances in Anavite as a basis to overcome summary judgment here. See Pl.’s Opp’n Br. at 2,

4, 12, 17. That is plainly improper and the Court should reject Plaintiff’s attempts to distract the

Court from the primary issue facing it here: has Plaintiff met his burden to produce admissible

evidence that Anavite, was adulterated with 1-androstenedione? As explained in Defendants’

moving brief and below, Plaintiff cannot meet his burden and his Second Amended Complaint

should be dismissed with prejudice.1

B. The SMRTL Test Reports are Inadmissible Hearsay that Do Not Fall Within
the Business Records Exception.

Plaintiff’s opposition brief does not dispute that the SMRTL test reports are hearsay

evidence and makes clear that Plaintiff has no other evidence that Anavite was adulterated with

1-androstenedione. See Pl.’s Opp’n Br. at 4-5. In order to save his ailing case, Plaintiff now

contends that: (1) certain affidavits he obtained after the close of discovery supposedly cure the

hearsay nature of the SMRTL test reports, and (2) his failure to name anyone from SMRTL on

his initial disclosures, or depose anyone from SMRTL while discovery was open, is harmless and

1
Plaintiff and his counsel’s continued intransigence regarding the 1-androstenedione issue is consistent with their
approach to this case generally, which has included multiple instances of failing to litigate this matter professionally
and according to the Rules. Each of the instances in which Plaintiff has flouted his obligations has cost Defendants
and the Court unnecessary time and expense. Of course, the Court is well aware that Plaintiff is now subject to an
adverse inference if this matter goes to trial due to Plaintiff’s spoliation of the bottle of Anavite he was supposedly
taking in October 2016. See ECF No. 122. Plaintiff’s sloppy approach to this case was again evidenced by his utter
failure to follow Rule 26’s requirements when he proposed an expert that was unqualified and used unreliable
methods to opine about irrelevant matters (i.e. DMHA and androstenedione). ECF No. 125 at 8-13. The primary
basis for this summary judgment motion could have also been avoided if Plaintiff had adhered to his obligations to
properly gather and introduce evidence. At some point––which Defendants contend is now––Plaintiff must suffer
the consequences of his actions.

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has caused Defendants no prejudice. These positions are untenable from a legal and factual

perspective and must be rejected by the Court.

1) The Conclusions Contained in the SMRTL Test Report are an Expert

Opinion that Cannot be Admitted via the Business Record Exception.

“The hallmark of documents admitted under the business records exception is that they

are trustworthy and reliable.” Ortho Pharm. Corp. v. Cosprophar, Inc., 828 F. Supp. 1114, 1119

(S.D.N.Y. 1993), aff'd, 32 F.3d 690 (2d Cir. 1994) (citing Saks Int'l, Inc. v. M/V “Export

Champion,” 817 F.2d 1011, 1013 (2d Cir. 1987)). The business records exception (“BRE”) “was

developed to modify the common law requirement of producing at trial all participants in the

gathering and recording of daily business activity, a requirement which had grown unwieldy

because of the growth and industrialization of American business and the concomitant division

of labor.” Id. Hearsay evidence submitted pursuant to the BRE is rejected when “the reliability of

the exhibit cannot be measured” because the person authenticating the document has

“insufficient knowledge of the methods of preparation [and] methodology” used to reach the

conclusions reflected in the hearsay document. Id. at 1120.

Although a business record can be admitted via the BRE even though it contains an

opinion, “[s]uch opinions should be governed by the ordinary restrictions on expert

qualifications and proper subjects for expert opinions.” 2 McCormick On Evid. § 287 (8th ed.).

An example of expert opinions that are contained in business records that are commonly not

admitted pursuant to the BRE are diagnostic opinions of doctors contained in hospital/medical

records. Even though “these entries are clearly in the regular course of the operations of the

hospital, . . . where indications of lack of trustworthiness are shown, which may result from a

lack of expert qualifications or from a lack of factual support, exclusion is warranted.” 2

McCormick On Evid. § 293 (8th ed.). Exclusion of expert opinion evidence in a business record

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is also warranted when “no cross-examination is possible,” because “[w]hen an expert opinion is

offered by a witness personally testifying, the expert is [normally] available for cross-

examination on that opinion.” Id. Importantly, “inclusion of opinions or diagnoses within the rule

only removes the bar of hearsay. In the absence of the availability of the expert for explanation

and cross-examination, the court may conclude that the probative value of this evidence is

outweighed by the danger that the jury will be misled or confused.” Id. Indeed, “[t]his concern is

particularly significant if the opinion involves difficult matters of interpretation and a central

dispute in the case, such as causation.” Id. (emphasis added).

This restriction on bootstrapping expert opinions via the BRE clearly applies to the

SMRTL test reports, which are not merely some run-of-the-mill notation in a business’s ledger

that a certain event occurred, a bill was paid, or an expense was incurred. Instead, the SMRTL

test reports reflect the expert opinion of someone at SMRTL2 that Anavite Lot # 164150475

supposedly contains trace amounts of 1-androstenedione, which directly touches on the ultimate

issue of causation. That conclusion––dubious as it is––was presumably the result of a complex

scientific process using some heretofore unknown devices, individuals and methods analyzing

Anavite. Thus, the SMRTL test reports’ conclusions fall within the ambit of Rule 702 and its

requirements for expert testimony/opinions. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 589–90 (1993) (explaining that expert testimony consists of “scientific, technical, or other

specialized knowledge” that is outside the knowledge of the average juror); Fane v. Zimmer,

Inc., 927 F.2d 124, 131 (2d Cir. 1991) (expert testimony required when issues presented are

“beyond the sphere of the ordinary juryman”).

2
The identity of the lab technician at SMRTL that conducted the testing at issue still remains unclear. It may be
Richard Van Wagoner, but that was not confirmed by Daniel Eichner, SMRTL’s representative that submitted an
affidavit stating that the SMRTL test reports are authentic. ECF No. 127-8. And, as explained in Defendants’
Moving Brief, Plaintiff is barred from calling Mr. Van Wagoner, either as a fact witness or an expert witness, at this
late juncture.

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Although SMRTL may be in the business of testing products and dietary supplements

regularly, that fact does not render its conclusions trustworthy or reliable. As Defendants

explained in their moving brief, the SMRTL test reports are facially unreliable because: (1) the

SMRTL test reports conflict with one another as to how much 1-androstenedione was

supposedly detected in Anavite, (2) they lack any information about the testing methodology

employed, the equipment that was used, or how those machines were calibrated and operated, (3)

they do not identify the person that performed the test, the qualifications of the person that

performed that test, or (4) provide any information that could support the results (e.g.,

chromatograms and other laboratory documents). Defs.’ Br. at 10 n.3. Beyond the facial

unreliability, Defendants’ chemistry expert noted in his expert report that SMRTL did “not

provide either a limit of detection or the analytical method used” and that he considered the

results less reliable than the analyses of Anavite that found it to be free of 1-androstenedione.

ECF No. 126-5 at 21.

To allow such an unsupported expert opinion to be submitted on such a key issue––when

so little is known about how the conclusion contained in that evidence was reached and whether

it is reliable––completely undermines the rationale behind the BRE. Moreover, it is simply

unheard of for such expert evidence to be submitted without an expert to introduce it, explain

how the conclusions were reached, and be subject to cross-examination. Daubert, 509 U.S. at

579 (noting that the opportunity for “vigorous cross-examination of an expert is a key

opportunity afforded to a party that disputes the expert’s opinion).

2) Plaintiff’s Newly Obtained Affidavits Do Nothing to Show that the

SMRTL Test Reports Are Trustworthy and Reliable.

Even if the Court does not bar admission of the SMRTL test reports on the grounds that

their conclusions constitute an expert opinion, Plaintiff’s newly obtained declarations, ECF Nos.

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127-8 and 127-9, completely fail to address any of the reliability issues that plague the SMRTL

test reports. In fact, these affidavits make it clear that Plaintiff still completely misunderstands

the operation of the BRE as related to the SMRTL test reports. The ultimate question is not

whether the SMRTL test reports were created by SMRTL. Rather, the ultimate question is

whether the opinions contained in those reports regarding the amount of 1-androstenedione

supposedly detected in Anavite Lot # 164150475 are trustworthy and reliable. Plaintiff’s newly

obtained affidavits do nothing to address that issue because neither affiant has the requisite

personal knowledge regarding the manner, methods, or procedures used by SMRTL to reach its

ultimate conclusion.

In Abascal v. Fleckenstein, 820 F.3d 561, 563-64 (2d Cir. 2016), the Second Circuit held

that the BRE did not apply to a report describing prison conditions drafted by a non-profit

watchdog group. The report was unsigned and “did not contain the underlying data upon which”

it relied. Id. at 564. The district court permitted the admission of the report via the BRE. The

Second Circuit reversed, noting that the Defendants had shown that the “method or

circumstances of preparation [of the report] indicate[d] a lack of trustworthiness.” Id. at 566.

This lack of trustworthiness was evident because the report lacked any way to confirm the data

contained therein and it did “not describe the methodology that was used.” Id. Lacking any

ability to resolve these glaring issues, the Abascal Court barred submission of the report under

the BRE. Id., see also Ortho Pharm. Corp., 828 F. Supp. 1114 at 1120 (barring the submission of

multiple reports generated by a non-party where the witness attempting to lay a foundation under

the BRE “gave no testimony about the techniques used by his co-workers,” “had insufficient

knowledge of the methods of preparation, the selectivity and methodology” used by the reports

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author, and could not “elaborate[e] on [the] procedure [or the] methodology” used to generate

the reports.).

Abascal and Ortho Pharm. Corp. require the Court to bar the admission of the SMRTL

test reports into evidence. First, the affidavit submitted by Nadia Soghomonian, Legal Affairs

and Investigation Counsel with USADA (ECF No. 127-9), does nothing to explain how the

opinions contained in the SMRTL test reports were reached. Instead, Ms. Soghomonian merely

attests that the emails transmitting the SMRTL test reports, and related correspondence, are true

copies of the originals. Second, the affidavit submitted by Daniel Eichner, the President of

SMRTL (ECF No. 127-8), similarly fails to address the many issues with the SMRTL test

reports. Indeed, Mr. Eichner makes it clear that he does not have personal knowledge of how the

opinions in the SMRTL test reports were reached. Eichner Aff. at ¶ 8. Although Mr. Eichner

stated that the SMRTL test reports were “made and kept in the course of a regularly conducted

analysis,” id. at ¶ 9, he completely failed to elaborate “on the procedure [or] methodology”

employed by whoever conducted the analyses in question. Ortho Pharm. Corp., 828 F. Supp.

1114 at 1120. Mr. Eichner’s boilerplate statements regurgitating the requirements of the BRE,

“without some indicia of trustworthiness, cannot constitute ‘regular business activity’ that is

admissible under Rule 803(6).” Id. at 1121. As such, the Court should conclude that the

Soghomonian and Eichner affidavits––both obtained long after the close of fact discovery––do

not render the SMRTL test reports admissible via the BRE.

3) Plaintiff’s Discovery Failures are Neither Justified Nor Harmless.

Federal Rule of Civil Procedure 37(c)(1) states that “[i]f a party fails to provide

information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use

that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the

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failure was substantially justified or is harmless.”) (emphasis added). This hard line rule was

crafted as “a strong inducement for disclosure of material that the disclosing party would expect

to use as evidence,” Advisory Committee Note to Rule 37, and “to prevent the practice of

‘sandbagging’ an adversary with new evidence,” Ritchie Risk-Linked Strategies Trading

(Ireland), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 156 (S.D.N.Y. 2012). Courts “have ‘broad

discretion’ to determine the nature of any sanction that should be imposed under Rule 37, ‘based

on all the facts of the case.’” Id. “In determining whether preclusion or another sanction would

be appropriate, courts should consider: ‘(1) the party’s explanation3 for the failure to comply

with the discovery [requirement]; (2) the importance of ... the precluded [evidence]; (3) the

prejudice4 suffered by the opposing party as a result of having to prepare to meet the new

testimony; and (4) the possibility of a continuance.” Id. at 157 (quoting Softel, Inc. v. Dragon

Medical & Scientific Communications, Inc., 118 F.3d 955, 961 (2d Cir. 1997)).

Plaintiff’s failure to name any witnesses or depose anyone from SMRTL is not justified

and is clearly prejudicial to Defendants. Fact discovery in this matter ended in November 2018.5

SOF ¶ 21; ECF No. 76. Plaintiff has never sought to reopen it. SOF ¶ 22. Expert discovery

closed on December 13, 2018. ECF No. 82. Thus, Plaintiff had over a year to seek leave from the

Court to: (1) reopen discovery to allow him to name the proper party from SMRTL as an expert

witness, or (2) amend his initial disclosure to name the person who performed SMRTL’s analysis

of Anavite Lot # 164150475. He did neither and has offered no good justification for his failure

3
“Substantial justification” may be demonstrated where “there is ‘justification to a degree that could satisfy a
reasonable person that parties could differ as to whether the party was required to comply with the disclosure
request,’ or ‘if there exists a genuine dispute concerning compliance.’” Id. at 157 (citation omitted).
4
“Harmless[ness]” means an absence of prejudice to the defendant.” Williams v. County of Orange, No. 03 CIV
5182 (LMS), 2005 WL 6001507, at *3 (S.D.N.Y. Dec. 13, 2005).
5
Fact discovery originally closed on July 31, 2018, but was reopened by Defendants, upon good cause, after one of
Plaintiff’s sponsors produced evidence that contradicted Plaintiff’s version of events regarding the spoliation of the
Anavite Plaintiff contends he was taking in October 2016. See ECF No. 76.

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to abide by the Rules, other than to accuse Defendants of taking a “‘gotcha approach to

litigation” and arguing that Defendants have had the SMRTL test reports in their possession

throughout the case, and therefore will suffer no prejudice if the reports are admitted. Plaintiff is

incorrect.

Defendants are not engaging in “gotcha” litigation––they are merely asking the Court to

enforce the Federal Rules of Civil Procedure and Evidence. Plaintiff may not like the outcome of

the application of these rules to his slipshod approach to this case, but at some point the Rules

must be applied in order to have any meaningfully deterrent effect. As explained in footnote one,

Plaintiff’s discovery and evidentiary missteps have hamstrung Defendants ability to defend

themselves in his case, and to allow Plaintiff, at this late juncture, to reopen discovery (either fact

or expert), after Defendants have gone to great lengths to prepare their defense, would be

extremely prejudicial. Indeed, the Second Circuit, confronted with a very similar fact pattern

where a party failed to provide a calculation of, and basis for, damages as required by Rule 26(a)

as part of its initial disclosures, held as follows:

[Although the] evidence of lost profits was essential to proving these damages, all
of the other factors weigh heavily in favor of exclusion. Design has not yet
explained why it omitted “lost profits” as a category of damages in its Initial
Disclosure. The prejudice to the defendants in having to prepare for this evidence
would have been severe, as discovery would have had to be reopened to
determine whether Design's calculations were proper. The “expert” witness that
Design wanted to call also would have had to (a) prepare a report; and (b) be
qualified as an expert with regard to the calculation of damages. Finally, weighing
heavily on both the prejudice and possibility of continuance factors was the fact
that discovery had been closed for “approximately one and a half years,” and at
the time of the offer of expert testimony there was only a “short time left before
trial.” On the facts before us, the District Court did not abuse its discretion in
determining that sanctions, including severe sanctions, were warranted for
Design's failure to abide by Rule 26(a)(1)(c).

Design Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir. 2006)

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The applicability of the holding in Design Strategy to this case requires little elucidation.

Every party to this litigation was aware of the Court’s desire to move this case forward quickly

and efficiently. Multiple depositions were taken in New York, New Jersey, Georgia and Texas.

Plaintiff could have, at virtually any point, sought to cure the issue he is confronted with now but

failed to do so. Considering the utter lack of justification for this failure to comply with the rules,

the prejudice to Defendants, and Plaintiff’s multiple other discovery and evidentiary missteps,

there is no reason for the Court to yet again reopen discovery in order to allow Plaintiff to

attempt to correct his mistakes. See Rienzi & Sons, Inc. v. N. Puglisi & F. Industria Paste

Alientari S.P.A., No. 08-CV-2540 DLI JMA, 2011 WL 1239867, at *4 (E.D.N.Y. Mar. 30, 2011)

(“[T]he closure of discovery also ‘weighs strongly against the possibility of a continuance,’

especially where, as here, the plaintiff has “disregarded its discovery obligations without a

sufficient explanation,” and even though the plaintiff “may be denied any recovery under this

theory as a result.”)

C. Plaintiff’s Remaining Arguments are Meritless.

Due to page-limits, Defendants will keep their remaining arguments circumspect. First,

Plaintiff simply has no legal basis for his argument that an expert is not required in design defect

cases such as this.6 Second, Plaintiff has no evidence that Anavite is adulterated with 1-

androstenedione, which requires dismissal of each of his causes of action. His statements about

other supposed contaminants in Anavite are irrelevant and cannot meet his evidentiary burden.

Third, Plaintiff’s claim for punitive damages lacks any basis in the record, because, as Plaintiff

admitted, he has no evidence that Anavite was intentionally spiked, and failed to cite to any

evidence that Defendants acted with gross negligence. See Pl.’s Opp’n Br. at 19-20.

6
Plaintiff is similarly incorrect that the Court cannot, at this late juncture, require Plaintiff to state a theory of the
case. This case is on the verge of trial, not at the pleading stage, rendering Plaintiff’s citation to a Astoria Energy II
LLC v. HH Valves Ltd., No. 17-CV-5724, 2019 WL 4120759, at *1 (E.D.N.Y. Aug. 2, 2019), unavailing.

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II. CONCLUSION

For the reasons stated above, the Court should grant Defendants’ Motion for Summary

Judgment and dismiss Plaintiff’s Second Amended Complaint with prejudice.

Respectfully submitted,

Dated: January 23, 2020 By: s/ Jack Wenik

Jack Wenik, Esq.

Robert M. Travisano, Esq.
David J. Marck, Esq.
EPSTEIN BECKER & GREEN
Attorneys for Defendants
GASPARI NUTRITION, INC., and HI-
TECH PHARMACEUTICALS, INC.
One Gateway Center, 13th Floor
Newark, New Jersey 07102
(973) 642-1900

875 Third Avenue

New York, NY 10022
(212) 351-4500

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

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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