In re Lyman Good Dietary Supplements Litig.

• Decision Date: 22 June 2020
• Docket Number: 17-CV-8047 (VEC)
• Parties: In re Lyman Good Dietary Supplements Litigation
• Court: U.S. District Court — Southern District of New York

In re Lyman Good Dietary Supplements Litigation

17-CV-8047 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 22, 2020

OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

This action stems from Plaintiff Lyman Good's suspension from the Ultimate Fighting Championship ("UFC") after testing positive for 1-androstenedione ("1-A"), an illicit anabolic steroid. Plaintiff claims that Anavite, a dietary supplement sold and manufactured by Defendants, contained 1-A and caused his positive drug test and resulting suspension. Plaintiff asserts claims for: (i) breach of express warranty; (ii) breach of implied warranties; (iii) violations of New York General Business Law §§ 349-50; (iv) products liability under strict liability and negligence theories; and (v) general negligence. See Second Am. Compl. ("SAC"), Dkt. 60. Defendants have moved for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56. Dkt. 126. For the following reasons, Defendants' motion is GRANTED.

BACKGROUND¹

Plaintiff is a professional mixed martial arts fighter who has competed in the UFC since July 2015. Defs.' 56.1 Stmt. ¶ 1. The UFC subjects its athletes to a performance enhancing drug ("PED") monitoring program overseen by the United States Anti-Doping Agency ("USADA"). Id. ¶ 2. As part of his contract with the UFC, Plaintiff agreed to submit to random PED testsadministered by the USADA. Id. ¶ 3. On October 14, 2016, Plaintiff took a PED test; on October 24, 2016, the lab results revealed that Plaintiff had tested positive for 1-A and its metabolite 1-(5α)-androsten-3α-o1-17-one.² Id. ¶¶ 4-5; Marck Decl., Ex. 1. 1-A is a banned PED and its presence in Plaintiff's urine would typically result in suspension from the UFC. Id. ¶ 6. Indeed, after Plaintiff tested positive for 1-A, the USADA suspended him for two years; his suspension was later reduced to six months. Pl. 56.1 Stmt. ¶ 42.

At some point before his drug test in October 2016, Plaintiff claims he consumed Anavite, a multivitamin sold and manufactured by Defendants.³ Id. ¶¶ 35-36; Defs.' 56.1 Stmt. ¶ 7. Although it does not appear as an ingredient on the vitamin's label, Plaintiff alleges that Anavite contains 1-A, and that it was his consumption of Anavite that caused him to test positive for 1-A. Defs.' 56.1 Stmt. ¶ 7. Prior to submitting his urine sample to the USADA for testing, Plaintiff completed a "Declaration of Use," setting forth the "prescription/non-prescription medications, any infusions and/or injections, dietary supplements and/or other substances taken in the last seven (7) days (including: vitamins, minerals, herbs, proteins, amino acids, and any other dietary supplements)." Id. ¶ 24; Marck Decl. Ex. 8. The declaration required Plaintiff to certify that he had reviewed the substances listed on the declaration and to confirm that it was complete and accurate. Defs.' 56.1 Stmt. ¶ 25. Plaintiff did not list Anavite on his USADA declaration, although he did list over a dozen other dietary supplements, including anothermultivitamin. Id. ¶¶ 26-27. Moreover, at no point while his drug test results were pending did Plaintiff inform the USADA that his declaration was inaccurate or incomplete. Id. ¶ 28.

In 2017, well after Plaintiff's positive PED test, the USADA submitted to the Sports Medicine Research and Testing Laboratory ("SMRTL") two bottles of Anavite for testing. Id. ¶ 13. One bottle was open and contained a single tablet; the other bottle was unopened and contained 180 tablets. Dkt. 96-5 at 3, 6. Both purported to be from the same lot. Id. USADA asked SMRTL to analyze the tablets for anabolic agents.⁴ Id.; Defs.' 56.1 Stmt. ¶ 13. On March 29, 2017, the SMRTL emailed the results of its analyses to the USADA. Dkt. 96-5 at 2. The SMRTL report contains two pages; the first states that 1-A was detected in Anavite from one bottle at "approximately 370 nanograms per tablet" and the second page states that 1-A was detected in Anavite from the second bottle at "approximately 850 nanograms per tablet."⁵ Id. at 3, 6. There is no explanation for why tablets from the same lot would contain radically different quantities of 1-A.

Plaintiff asserts claims for: (i) breach of express warranty; (ii) breach of implied warranty of merchantability; (iii) breach of implied warranty of fitness for a particular purpose; (iv) violations of New York General Business Law §§ 349-50; (v) products liability under strict liability and negligence theories; and (vi) general negligence. See SAC, Dkt. 60.

DISCUSSION

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). To defeat summary judgment, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(e)). A party may not "rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that [his] version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). Courts "construe the facts in the light most favorable to the non-moving party and [] resolve all ambiguities and draw all reasonable inferences against the movant." Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per curiam) (internal citation and quotation marks omitted).

Because the purpose of summary judgment is to "weed out cases in which 'there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law,' it is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment." Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (internal citation omitted); see also Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009) ("[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment."); Colon ex rel. Molina v. BIC USA, Inc., 199 F.Supp. 2d 53, 68 (S.D.N.Y. 2001) ("Pursuant to Rule 104(a), the court must evaluate evidence for admissibility before it considers that evidence in ruling on a summary judgment motion."). Because hearsay evidence that fails to satisfy a hearsay exception is inadmissible at trial, the Court will not consider it in ruling on a motion for summary judgment. Fed. R. Evid. 802; H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir.1991) (hearsay assertion that would not be admissible if testified to at trial is not competent material for a Rule 56(e) affidavit); Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013) (affirming the district court's grant of summary judgment due to its determination that certain evidence was inadmissible hearsay).

Here, a key element of all of Plaintiff's claims is the supposed adulteration of Anavite. As such, the entirety of Plaintiff's case hinges on his ability to create a genuine issue of fact as to whether Anavite contains 1-A. Because the Court finds that Plaintiff lacks any admissible evidence indicating that Anavite contains 1-A, his claims necessarily fail.

A. The SMRTL Lab Reports Are Inadmissible Hearsay

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Hearsay is "inadmissible unless made admissible by a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court." Porter 722 F.3d at 97; Fed. R. Evid. 802. Here, the SMRTL reports are indisputably hearsay; they are out-of-court written statements offered to prove that Anavite contains 1-A.

Although Plaintiff argues that the reports are admissible under the Business Records Exception ("BRE") to the hearsay rule, the Court disagrees. Under the BRE, "a record of an act, event, condition, opinion, or diagnosis" may be admissible even if the declarant is unavailable if:

(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business,organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6). The purpose of the BRE is to "ensure that documents were not created for 'personal purpose[s] . . . or in anticipation of any litigation' so that the creator of the document 'had no motive to falsify the record in question.'" United States v. Kaiser, 609 F.3d 556, 574 (2d Cir. 2010) (quoting United States v. Freidin, 849 F.2d 716, 719 (2d Cir. 1988)); see also Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir. 1994) ("In all cases, the principal precondition to admission of documents as business records pursuant to Fed. R. Evid. 803(6) is that the records have sufficient indicia of trustworthiness to be considered reliable."). Thus, in order to introduce the lab reports as substantive evidence under the BRE, Plaintiff must demonstrate that: (i) the reports were made at or near the time the testing of Anavite took place, by someone with knowledge; (i...