Loss of supplement bottle at center of Motion to Dismiss Lyman Good’s case

March 22, 2019

The drug maker and distributor in Lyman Good’s lawsuit for a tainted supplement brought a motion to dismiss his claims for spoliation of evidence last month.  The UFC fighter took a supplement which caused him to fail a USADA drug test and miss out on a bout.  The motion to dismiss claims that Good and/or his lawyer did not retain the alleged supplement which caused the failed test.

Good’s lawyer and fight manager David Fish indicated that it was lost in the mail after it was sent to a laboratory for testing.  However, the drug maker and distributor contend that this is a false narrative.

Defendants Gaspari Nutrition, Inc., Hi-Tech Pharmaceuticals, Inc., and Vitamin Shoppe, Inc.   have brought this motion for spoliation of evidence.  The motion is based on the discovery rules which allows for the dismissal of a lawsuit if a party does not preserve evidence.  According to Good, the remedy is an extreme one as the fighter’s attorney argued that the “missing Anavite bottle” is not the key piece of evidence and is not the ultimate question for the trier of fact.

The elements for destruction of evidence are:

  1. That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;
  2. That the records were destroyed “with a culpable state of mind”;
  3. That the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

“Culpable state of mind” essentially means that there was knowledge and intent to destroy the evidence.  Even if there was mere negligence on the part of the party, it would still qualify.

In its opposition to the moving papers, Good argues that there is nothing to justify dismissal of his lawsuit due to the allegations of “spoliation” of evidence.  He further argues that the “missing Anavite bottle” is not essential to the heart of the lawsuit. Calling it a “red herring” Good argues that the identity of the manufacturer of the product and the existence of a product defect are issues of fact capable to prove via circumstantial evidence.  This would mean that Good could prove the defect even if the actual bottle of alleged tainted product was not present.

In its moving papers, defendants point to Good’s initial argument that it had sent a bottle of Anavite to be analyzed by LGC Science, Inc. (“LGC”). Per defendants, LGC could not identify the anabolic steroid despite representations by Good in his first lawsuit that it did.  It was not until LGC corrected Good did he change his lawsuit to reflect this.  The episode infers a pattern by Good of not stating the truth.  If a court were to accept such an argument, it may side with defendants in dismissing the case.

Defendants also point to the fact that Good did not list the use of Anavite on his USADA “Declaration of Use” form.  Even when he clarified his form to include another supplement, Anavite was not listed.  Defendants create the suspicion based on these “lapses of memory” that Good was selectively recalling information for his benefit.

The misplacement of the bottle of Anavite by Good is called into question as when it was requested of Good, he indicated that he gave the bottle to his attorney and manager David Fish.  Fish indicated that he had it and sent it to counsel for testing but it was never received.

Defendants proclaim this to be a case of spoliation of evidence where Good has destroyed the Anavite bottle on purpose to ensure that it would not be tested.

Defendant Vitamin Shoppe argued that Good could not establish the manufacture of the product ingested could not be identified by “circumstantial evidence” as argued.

While the defendants had claimed that Good’s attorney should recuse himself due to the loss of the evidence, they backed off from this threat claiming that it would cause an undue hardship on Good.  Still, the dismissal of the case would be another extreme measure if they can convince a court that the loss of the bottle is central to the lawsuit.

Certainly, the lack of product may have been evidence which defendants could have tested and mitigated their liability.  If it was found not to have the banned substance, they would be not liable.  If it had the banned substance, they can assess the origins of it determine its origins.

Since the Motion to Dismiss was filed, Good has filed a motion to preclude the defendant’s experts which would exclude their testimony at the time of trial.  This is in anticipation of the Court denying the motion and the case moving to trial.

This would seem to be a safe assumption.  The Motion to Dismiss is a home run in this instance.  While the rules for destruction of evidence has dismissal of the case as a repercussion.  This does not seem to be what has happened here.  Although defendants make the argument that even gross negligence should be considered as a means of spoliation with intent, the Court will likely side with Good here.

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