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Nutritional Biomimetics, LLC v. Empirical Labs, Inc.

United States District Court, D. Colorado

April 30, 2018

NUTRITIONAL BIOMIMETICS, LLC, Plaintiff/Counterclaim Defendant
v.
EMPIRICAL LABS INCORPORATED, Defendant/ and Counterclaim Plaintiff, Counterclaim Plaintiff,
v.
EMEK BLAIR, CLVM, LLC AND CHARLES BARKER, Counterclaim Defendants/ Counterclaim Plaintiffs,
v.
KELLY GOYEN and ASA WALDSTEIN, Counterclaim Defendants.

          ORDER

          KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE

         This case comes before the court on Defendant/Counterclaim Plaintiff Empirical Labs' motion for leave to designate a substitute expert or in the alternative, a motion in limine vis-à-vis cross examination of Richard Gering. (Doc. No. 351.) That motion was filed on January 25, 2018. Plaintiff, Nutritional Biomimetics, LLC and Third-Party Defendants, Emek Blair and CLVM, LLC (collectively, “Plaintiffs”) filed a response on February 2, 2018. (Doc. No. 358.) Defendant filed a reply on March 1, 2018. (Doc. No. 361.)

         FACTUAL BACKGROUND

         This case concerns competition between two entities engaged in the nutraceutical supplements field. There has been no shortage of motions filed in this case. This is yet another. It involves Defendant's damages expert, Richard Gering. The core of the dispute lies with Mr. Gering misrepresenting his academic credentials in previous cases, which Defendant has only become aware of since mid-2017. Specifically, the truth about Mr. Gering's prior misrepresentations was revealed on August 8, 2017 during a deposition. At that time, Mr. Gering admitted that he lied about his PhD credentials in other court proceedings, including testimony given under oath:

Q: WHEN DID YOU START REPRESENTING YOURSELF AS HAVING OBTAINED A PH.D. FROM THE UNIVERSITY OF MARYLAND? A: WHILE I WAS FINISHING IT IN THE EARLY ‘90'S. Q: DO YOU RECALL WHEN THE FIRST TIME IS THAT YOU REPRESENTED AS HAVING A PH.D. TO A STATE OR FEDERAL COURT? A. I DO NOT. IT MUST HAVE BEEN PROBABLY AROUND 2000 OR LATER BECAUSE I DON'T THINK I EVER TESTIFIED BEFORE THEN.
Q. DID YOU TESTIFY UNDER OATH THAT YOU'D OBTAINED A
PH.D.?
A. YES.
Q. AND THAT WASN'T TRUE.
A. CORRECT.

         (Doc. No. 351-1, Gering Deposition (“Gering Depo.”) at 144:6-21; id. at 142:11- 143:17.)

         While it is true that Mr. Gering did not misrepresent his academic credentials in this case (and Plaintiff has not so alleged), the fact remains that Mr. Gering admitted at his August 8, 2017 deposition that he had lied under oath in several state and federal courts- claiming that he possessed a PhD when, in fact, he did not.

         When Defendant retained Mr. Gering, likely around the first half of 2016, [1] information regarding his prior misrepresentations in other cases was widely available on the internet and legal research databases such as Westlaw and LexisNexis.[2] Moreover, in more recent Google searches, multiple links are provided that bring into question the veracity of Mr. Gering's academic credentials in prior cases. (Doc. 356-1.) And while not dispositive because of other evidence in the record, even at the issuance of this order, a Google search reveals Mr. Gering's problematic history.[3]See Fed. R. Evid. 201(c) (“A court may take judicial notice, whether requested or not.”); see also Gent v. CUNA Mut. Ins. Society, 611 F.3d 79 (1st Cir. July 12, 2010) (taking judicial notice of general facts regarding Lyme Disease provided on the ...


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