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Seed v. Jarrow Formulas, Inc.

United States District Court, W.D. Kentucky, Louisville

March 29, 2019

CAUDILL SEED AND WAREHOUSE COMPANY, INC. PLAINTIFF
v.
JARROW FORMULAS, INC. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          CHARLES R. SIMPSON III, SENIOR JUDGE UNITED STATES DISTRICT COURT

         Pursuant to the Court's Pretrial Order (DN 273), the parties have filed pretrial motions in limine. Pending before the Court and resolved in this Memorandum Opinion and Order are: Caudill's Omnibus Motion in Limine (DN 283)

Jarrow's Motion in Limine to Preclude Lay Opinion Testimony Based on Scientific and Technical Knowledge (DN 290)
Caudill's Motion in Limine to Exclude Witnesses Not Previously Disclosed by Jarrow Formulas, Inc. (DN 298)
Jarrow's Motion in Limine to Preclude Arguments or Suggestion that McCarter & English Participated in Acts of Misappropriation (DN 292)
Jarrow's Motion in Limine to Preclude Evidence of Trade Secret Information Not Described in the Supplemental Response to Interrogatory 1 (DN 289)
Jarrow's Motion in Limine to Preclude Evidence Relating to Alleged Trade Secret Nos. 4 & 5 (DN 288)
Jarrow's Motion in Limine to Preclude Evidence of Alleged Misappropriation Committed Only by Kean Ashurst on Behalf of Jarrow Formulas (DN 293)

         The remaining motions in limine will be resolved by separate order.

         I.Caudill's Omnibus Motion in Limine (DN 283)

         Caudill sets forth thirteen motions in its omnibus motion. Some of Caudill's other motions (those to Preclude Lay Opinion Testimony (DN 290) and to Exclude Witnesses Not Previously Disclosed by Jarrow (DN 298)) are intimately related with aspects of the Omnibus motion. Therefore, as noted below, they are considered concurrently.

         A. Caudill's provisional patent, Jarrow's patents, and decisions of the Patent & Trademark Office or the Patent Trial Appeal Board

         As the Court has already made clear, “[p]atent and trade secret law are distinct.” Caudill Seed & Warehouse Co., Inc. v. Jarrow Formulas, Inc., No. 3:13-CV-82-CRS, 2017 WL 4364204, at *5 (W.D. Ky. Sept. 29, 2017). Introduction of Caudill's provisional patent, Jarrow's patent, or the reasoning underlying the decisions of the PTO or PTAB would offer nothing to the jury on the subject matter of trade secret protection and would be misleading and unduly confusing to the jury. Id.; Fed.R.Evid. 401, 402, 403. However, mere evidence that Caudill and Jarrow sought patents which were denied and granted, respectively, could be admissible for limited purposes to be determined in context at trial. Therefore, the motion will be granted in part and denied in part as to this evidence.

         B. Jarrow's allegations that Caudill's provisional patent is “fraudulent”

         Evidence regarding the alleged fraudulent nature of Caudill's provisional patent is likely irrelevant and unfairly prejudicial. Fed.R.Evid. 401, 402, 403. Further, Jarrow does not object to Caudill's motion on this ground, so long as it is permitted to argue that the process was created from publicly available information which was generally known or readily ascertainable. Such argument by Jarrow is clearly proper. Therefore, without objection, the motion will be granted as to this evidence.

         C. The superiority of the parties' competing broccoli seed pill products (and Jarrow, Inc.'s Motion in Limine to Preclude Lay Opinion Testimony Based on Scientific and Technical Knowledge (DN 290))

         The difference between Caudill's and Jarrow's products is relevant to determining whether Jarrow misappropriated Caudill's trade secrets as well as any subsequent damages experienced by Caudill. This evidence could be properly presented as fact evidence, without reference to Federal Rule of Evidence 701. To the extent a lay witness will offer an opinion, the testimony must comply with Rule 701. Caudill has moved to prevent Jarrow from discussing the superiority of the parties' competing products while Jarrow has moved to preclude lay opinion testimony based on scientific knowledge. At this time, without ...


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