United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE.
the Court is Defendants' Motion to Strike the Declaration
of Robert H. Stier, Jr. (Dkt. No. 302-2) and Exhibit Thereto
(Dkt. No. 302-3), ECF No. 310. The Defendants argue that the
Stier Declaration is improper and ask the Court to reject (1)
counsel's Excel spreadsheet calculations and a related
graph based on trial exhibit 484; (2) counsel's screen
capture of information contained in what he represents is a
searchable online database maintained by the U.S. Food and
Drug Administration; (3) unauthenticated copies of purported
“Administrative Procedures for CLIA Categorization,
” ECF No. 302-3, and “Guidance for Industry and
Food and Drug Administrative Staff, ” ECF No. 321-1;
and (4) an unauthenticated copy of an iSED operator's
manual, ECF No. 321-2. The Court agrees. There is no basis to
accept this eleventh-hour evidence. The Defendants'
motion to strike is therefore GRANTED.
First Circuit's ruling in Lussier v. Runyon, 50
F.3d 1103 (1st Cir. 1995), provides more than adequate
guidance here. In that action, plaintiff tried his claims of
disability discrimination to a district judge. Id.
at 1106. The court heard damages-related evidence at trial
concerning the plaintiff's eligibility for a disability
retirement annuity but was “[d]issatisfied with the
trial evidence on this subject.” Id. at 1113.
The court therefore ordered the parties to make post-trial
submissions concerning these benefits. Id. The court
ultimately relied on this new information to reduce
plaintiff's damages. Id.
First Circuit vacated the district court's judgment.
Id. “It is a fundamental principle of our
jurisprudence, ” wrote Judge Selya for the Court,
“that a factfinder may not consider extra-record
evidence concerning disputed adjudicative facts.”
Id. Certain circumstances permit a district court to
exercise his or her discretion to re-open the evidentiary
record. But the record in Lussier was not re-opened,
thus the district court improperly weighed additional
evidence without providing the parties “the standard
prophylax[es]” of trial: the opportunity to object,
cross-examine, impeach, and contradict. Id. at 1113,
n.13. The principle of judicial notice provided no safe
harbor because the relevant facts were neither generally
known nor undisputed. Id. at 1114. As the court in
the Eastern District of Virginia summed it up:
“Lussier espouses the proposition that a
court, no matter what its motivations, may not undertake the
unilateral pursuit of extra-record evidence nor under any
circumstances consider evidence advanced by one party
concerning disputed material facts that the opposing party is
not presented an opportunity to challenge.”
Mercexchange, L.L.C. v. eBay, Inc., 467 F.Supp.2d
608, 617 (E.D. Va. 2006).
evidence of disputed material facts is precisely what Alifax
has offered in the contested submissions. Regarding the Stier
Declaration, counsel's use of the Microsoft Excel goes
beyond creating an alternative depiction of trial exhibit
484: it creates new evidence by purporting to calculate a
trendline and to report an R2 value reflecting the data's
“fit.” The results of specific mathematical
computations are not facts that “exist in the unaided
memory of the populace.” United States v.
Bello, 194 F.3d 18, 23 (1st Cir. 1999). Alifax notes
that the members of the jury had access to a laptop running
Excel, but that fact does not demonstrate that a trendline
and R2 value were or are capable of being “accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed.R.Evid. 201(b)(2).
Moreover, the trial evidence about Alcor's correlation
test data (including when it was developed, what the data
shows, and what - if anything - the FDA may have used it for)
are at the heart of this dispute. See Mot. by Pl.
for Permanent Inj. and Mem. of Law In Supp. 1 (“Mot.
for Perm. Inj.”), ECF No. 302 (“[Alcor] submitted
comparative test data obtained as a direct consequence of its
trade secret theft to the FDA as the only test data
supporting its application for a CLIA designation of iSED
[sic] as ‘moderately complex.'”).
Consequently, the Court will not “defenestrate
established evidentiary processes” to consider this
additional information. Lussier, 50 F.3d at 1114.
Court reaches the same conclusion concerning Alifax's
screen captures from an FDA website, the CLIA categorization
procedures, and the iSED operator's manual. See
Stier Decl. ¶ 6; Mot. for Perm. Inj. Ex. C; Pl.'s
Reply Mem. in Supp. of Mot. for Permanent Inj. Ex. B, ECF No.
321-2. The Court does not perceive evidence that the FDA in
fact designated the iSED as “moderately complex”
in mid-2014 as “hardly controversial.” Pl.'s
Opp'n to Defs.' Mot. to Strike 2, ECF No. 322. Again,
what information Alcor submitted to the FDA and what - if
anything - the FDA did with that data are disputed material
facts. Alifax did not move to have this website or the
information contained therein admitted at trial where the
Defendants could have meaningfully assayed it.
Lussier, 50 F.3d at 1114 (“[A]ccepting
disputed evidence not tested in the crucible of trial is a
sharp departure from standard practice.”). Alifax has
not even offered official FDA records showing the iSED's
CLIA categorization or a copy of an archived website; it has
proposed a screenshot from counsel's computer.
See Stier Decl. ¶ 6. The Court is unpersuaded
that, under these circumstances, taking judicial notice of
the information reflected in paragraph 6 of the Stier
Declaration would be proper.
the “Administrative Procedures for CLIA Categorization,
” this document is dated October 2, 2017. Mot. for
Perm. Inj. Ex. C, at 1. The FDA submissions at issue here
occurred in the winter and spring of 2014. See Tr.
Ex. 114, 116. The proffered document thus has no probative
value and is irrelevant. See Fed.R.Evid. 401.
reply, Alifax attempts to remedy this defect by submitting
yet another new document - “Guidance for Industry and
Food and Drug Administrative Staff” - dated March 12,
2014. But this evidence is also faulty. As Alcor
argues, no witness has authenticated this
document and no foundation has been laid to show
that it qualifies for an exception to the hearsay bar under
Fed.R.Evid. 803. These deficiencies also scuttle Alifax's
attempt to introduce another iSED operator's manual, ECF
No. 321-2, as does Fed.R.Evid. 201. On its face, such a
document does not qualify as information “generally
known.” Fed.R.Evid. 201(b)(1). And as the manual does
not appear to identify its effective date range, it is
“subject to reasonable dispute” and inadmissible
under Fed.R.Evid. 201(b)(2). See also Reply in Supp.
of Defs.' Mot. to Strike the Decl. of Robert H. Stier,
Jr. (Dkt. No. 302-2) and Exhibit Thereto (Dkt. No. 302-3) at
7-8, ECF No. 326.
Court presided over a three-week trial of this dispute that
followed years of discovery. Alifax had every opportunity to
produce and present the information that is the subject of
the Defendant's motion long before the evidentiary record
closed. Alifax offers no excuses for its failure do so and no
basis whatsoever to justify re-opening the record.
foregoing reasons, Defendants' Motion to Strike the
Declaration of Robert H. Stier, Jr. (Dkt. No. 302-2) and
Exhibit Thereto (Dkt. No. 302-3) (ECF No. 310) is GRANTED.
The Declaration of Robert H. Stier, Jr. (ECF No. 302-2) is
hereby deemed struck and will not be relied upon for any
purpose by the Court in its post-trial rulings. The
supplemental attachments to Alifax's opposition
memorandum are similarly deemed struck.