The parties in the Lyman Good lawsuit against the nutritional supplement maker and distributor is going forward in a federal court in New York city. As reported earlier this month, the lawsuit may be nearing an end with Defendants seeking a motion for summary judgment.
For some background on the case, see here and here.
Defendants claims that summary judgment is appropriate because Good lacks “any admissible evidence that Anavite contains 1-androstenedione.” Defendants argue that since he lacks the evidence, “Plaintiff cannot prove any of his claims, or even create a material issue of fact regarding the allegedly offending contents of Anavite.” Previously, the court was favorable to its side on a motion to dismiss for spoliation of evidence. While the Court did not outright dismiss the case, it will allow the fact finder to infer that the lack of evidence may be due to Good’s fault.
Motion for Summary Judgment by MMA Payout on Scribd
Defendants cite Good’s evidence against it are two pages of “Confidential Test Reports” from Sports Medicine and Research Testing Laboratory (“SMRTL”). But Good has not provided the names of anyone from the laboratory that could verify the information. Thus, the records are nothing more than “business records hearsay.” This is due to the fact that the defendants claim that there is a need for a verified individual to verify the business record (i.e., confidential test report). Instead, Good is relying on a piece of paper without further explanation.
The evidentiary issues outlined in Defendants brief relate to the lack of evidence from Good and the inability to prove a design defect case without the proper experts. Both would give rise to the dismissal of the case. In addition, the business records hearsay issue indicates a rule which precludes a jury from making inferences from a document unless the actual records custodian or maker of the document is present to give first hand testimony on it. Good has not done this as of this late date in the lawsuit.
Good has filed his opposition to the summary judgment motions filed by the defendants in his lawsuit against the supplement makers that he claimed provided a tainted supplement which resulted in a failed USADA test.
Good’s attorney argues that the fighter has a “Constitutional Right to have a jury hear his claims.” Despite the argument lodged by defendants that Good lacks the subject bottle of Anavite, which was he claims was tainted, Good should still have his matter heard before a jury due to material facts in dispute.
Opposition to MSJ MEMO by MMA Payout on Scribd
Good spends a substantial amount of the opposition argument explaining the reasons why leaving the custodian of records at SMRTL off of plaintiffs’ witness disclosure would not be fatal in the prosecution of Good’s case. SMRTL was the lab in which Good’s attorney said to have sent the bottle of Anavite used by Good. It is the bottle that is missing from evidence and pointed out by defendants as the central reason why the lawsuit should be dismissed.
Good’s attorney points out that dismissal of an action is a severe discovery sanction and should not be given in this case due to the circumstances. He also argues the technicality of the argument claimed by defendants which is the lack of evidence provided by Good. Good’s attorney counters with the argument that they have circumstantial information on the bottle of Anavite that was the subject of the inquiry. Moreover, Good argues that the test results from the lab that procured the Anavite prior to it being misplaced is still viable as evidence.
Good’s attorney argues that there is not a need in a products liability “design defect” case to have an expert witness. With no expert witness listed for trial, Good argues that there is not a need to offer an expert to opine at the use of Anavite and that it should not have steroids in it. This would seemingly either mask or explain either an oversight by plaintiffs for not offering an expert regarding the use of Anavite.
Payout Perspective:
In review of both of these pleadings, it would seem like defendants have a better grasp of the law and have a viable argument regarding the loss of the evidence. However, the question is whether Good’s case has enough factual questions to survive a summary judgment motion. In most instances, the opposition brief should lead with its best argument for not dismissing the case or address the biggest concern from the moving party’s motion. However, Good’s attorney does neither and leads with a vague and general constitutional argument. From the experienced litigator, this would lead to several questions about the strength of the case even before getting to the rest of the brief.
It should be noted that Defendants’ won a victory in court with the Court allowing a jury to draw an adverse inference from the failure for Good to preserve evidence. While the Court did not outright dismiss the case based on the loss of the bottle, it is clear that it will be a hurdle if Good survives a motion for summary judgment.
Defendants will have the opportunity to respond to Good’s opposition. MMA Payout will keep you posted.