Case 1:17-cv-08047-VEC Document 96 Filed 02/08/19 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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In re Lyman Good Dietary Supplements Litigation : 17-CV-8047 (VEC)
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REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF

MOTION TO DISMISS DUE TO SPOLIATION OF EVIDENCE

EPSTEIN BECKER & GREEN, P.C.

Jack Wenik, Esq.
Robert M. Travisano, Esq.
David J. Marck, Esq.
Attorneys for Defendants
GASPARI NUTRITION, INC., and,
HI-TECH PHARMACEUTICALS, INC.

One Gateway Center, 13th Floor

Newark, New Jersey 07102
(973) 642-1900

250 Park Avenue

New York, New York 10177-1211
(212) 351-4500
 Case 1:17-cv-08047-VEC Document 96 Filed 02/08/19 Page 2 of 14

Defendants Gaspari Nutrition, Inc. (“GNI”) and Hi-Tech Pharmaceuticals, Inc. (“Hi-

Tech”) (collectively, “Defendants”), submit this reply memorandum of law in further support of

their motion (ECF No. 85), pursuant to Federal Rule of Civil Procedure 37 and the federal

common law, seeking the dismissal of Plaintiff Lyman Good’s Second Amended Complaint

(ECF No. 60) due to his inexcusable loss of the key piece of evidence in this

adulteration/products liability case.

I. INTRODUCTION

Dismissal of Plaintiff’s Second Amended Complaint is warranted because Plaintiff

acknowledges that he had a duty to preserve the opened bottle of Anavite that he was allegedly

taking at the time of his failed performance enhancing drug (“PED”) test. Pl.’s Opp’n Br. at 3.

He further admits that the missing bottle of Anavite was lost and Defendants will be unable to

analyze its contents. Id. In order to avoid responsibility for this egregious negligence, however,

Plaintiff makes several flawed legal arguments and misrepresents the factual record substantially.

Critically, Plaintiff misstates the law regarding the level of culpability required for a

spoliation sanction to be issued. Second Circuit binding precedent is unambiguous: spoliation

that occurs due to even mere negligence permits the entry of sanctions, including dismissal.

Plaintiff also distorts the factual record, particularly with regard to: (1) the substances that were

detected in Plaintiff’s urine following his failed PED test; (2) the results provided by the various

third-party laboratories that have analyzed Anavite; and (3) the testimony of Defendants’

experts. Plaintiff uses these misrepresentations to attempt to minimize the probative value of the

missing bottle of Anavite by arguing that its evidentiary value is low, or even nonexistent,

because this is supposedly a design defect case. He is incorrect in all regards.

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Anavite has been tested by five laboratories. Only a single one detected 1-

androstenedione––and only then at trace levels––which is the substance that was detected in

Plaintiff’s urine and caused him to be suspended by the UFC. Plainly, 1-androstenedione is not

present in all Anavite. Thus, at most, this is a manufacturing defect case that revolves around the

contents of a single bottle of Anavite––the one Plaintiff was supposedly taking in October 2016.

Its probative value is therefore paramount and the prejudice to Defendants from its absence is

apparent. The Court should not credit Plaintiff’s incorrect factual recitations and instead should

follow the Second Circuit’s precedent empowering district courts with “broad discretion in

crafting a proper sanction for spoliation,” including dismissal of the plaintiff’s action. Byrnie v.

Town of Cromwell Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (citing Chambers v. NASCO,

Inc., 501 U.S. 32, 43-45 (1991)).

Plaintiff’s counsel, Mr. Fish, admits that he was directly involved in the circumstances

that led to the spoliation that occurred here. There are substantial questions, however, that remain

unresolved about Mr. Fish’s role in the spoliation. Simply put, Mr. Fish’s version of events does

not align with the record, including documents submitted with Plaintiff’s opposition, or with the

deposition testimony of Mark Glazier, the CEO of Plaintiff’s sponsor, NutraBio Labs

(“NutraBio”). These inconsistencies make Mr. Fish’s testimony critical to a determination of the

disposition of the missing Anavite. Under New York DR 5-102(C), this situation would normally

necessitate Mr. Fish’s disqualification. Defendants, however, are willing to consent to Mr. Fish

continuing in this case––assuming, arguendo, that the Court declines to grant Defendants’

request to dismiss––if the Court concludes that his disqualification would render a hardship on

Plaintiff, subject to the condition that Plaintiff makes a fully informed waiver of any conflicts

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arising from Mr. Fish’s breach of DR 5-102(C), as well as his continued involvement in this

matter, that may arise here or on appeal.

II. ARGUMENT

A. Dismissal is an Appropriate Sanction Where a Party Spoliates Evidence in a

Negligent Manner

Plaintiff fundamentally misunderstands, and then misstates, the degree of culpability

required to find that a party should be sanctioned for its spoliation of evidence. As Defendants

explained in their moving brief, the Second Circuit has unquestionably held that sanctions for

spoliation, including dismissal, are available when the spoliator acted in a negligent manner. See

Defs.’ Br. at 16-18 (collecting cases); Residential Funding Corp. v. DeGeorge Fin. Corp., 306

F.3d 99, 108 (2d Cir. 2002) (“[T]he ‘culpable state of mind’ factor is satisfied by a showing that

the evidence was destroyed ‘knowingly, even if without intent to [breach a duty to preserve it],

or negligently.”) (citing Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 109) (alteration

and emphasis in Residential); Beers v. GMC, 97-CV-482 (NPM/DNH), 1999 U.S. Dist. LEXIS

12285, at *13 (N.D.N.Y. May 17, 1999) (dismissing product liability action where the plaintiff’s

expert was “grossly negligent in permanently altering, and then even worse, losing the very item

th[e] law suit [was] over . . . .”).

Plaintiff, however, argues that the 2015 amendments to Rule 37(e) have obviated the

Second Circuit’s “negligence suffices for spoliation” rule and cites Experience Hendrix, L.L.C. v.

Pitsicalis, 2018 U.S. Dist. LEXIS 201362 (S.D.N.Y. Nov. 27, 2018), in support. See Pl.’s Opp’n

Br. at 6. This is incorrect. Although Rule 37 was amended in 2015, the amendment that Pitsicalis

considered was related to Rule 37(e), which is solely limited to spoliation of electronically stored

information (“ESI”). See Fed. R. Civ. P. 37(e) (“If electronically stored information that should

have been preserved in the anticipation or conduct of litigation is lost because a party failed to

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take reasonable steps to preserve it, and it cannot be restored or replaced through additional

discovery, the court . . . .”); Notes of Advisory Committee on 2015 Amendments (“The new rule

applies only to electronically stored information, also the focus of the 2006 rule . . . .”).

Plaintiff misses this critical nuance and attempts to expand the holding of Pitsicalis to

upend several decades of Second Cirtcuit spoliation law. That is clearly improper, especially

when the Pitsicalis court was aware of the limited scope of its holding, which was confined to

the spoliated ESI issues before it, not spoliated physical evidence, as is the case here. See

Pitsicalis, 2018 U.S. Dist. LEXIS 201362 at *21 (“Following the amendment [of Rule 37(e)],

however, such an instruction requires a finding that the party accused of destroying, or otherwise

failing to preserve, evidence did so intentionally”) (emphasis added). Pitsicalis did not alter the

Second Circuit’s quantum of culpability framework and less than intentional spoliation of critical

physical evidence, as occurred here, continues to support the entry of sanctions.

B. Plaintiff Distorts the Factual Record In Order to Deemphasize the

Importance of the Missing Bottle of Anavite

Plaintiff’s opposition is based on the flawed premise that the missing Anavite is “non-

essential” or otherwise unnecessary to a determination of liability. In order to support that

position, Plaintiff substantially misrepresents the record and attempts to avoid any discussion of

the context1 surrounding his failed PED test and his spoliation of the missing bottle of Anavite.

Of course, that context matters. See Reilly v. NatWest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir.

1999) (holding that spoliation analysis is a “case-by-case” approach that considers “the facts and

evidentiary posture of each case.”).

As Defendants explained in their moving brief, Plaintiff testified at his deposition that he

did not remember many key details related to his supposed use of Anavite. Def.’s Br. at 6-7. He

1
See Pl.’s Opp’n Br. at 1 n.1 (refusing to address the issues raised in Defendants’ moving brief that highlights the
various proof and credibility issues rampant in Plaintiff’s case).

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also omitted Anavite from his United States Anti-Doping Agency USADA Declaration of Use

that was completed contemporaneously with his PED test, and failed to amend that disclosure

when he was given the chance to do so by USADA. Id. at 5-6. These facts are germane to this

motion because they inform the Court of the “evidentiary posture” of the case, i.e. Plaintiff’s

serious credibility and proof issues, and provide additional circumstantial evidence explaining

why Plaintiff “lost” the Anavite he bought on October 12, 2016: either it did not contain 1-

androstenedione or he was not taking it at the time of his failed PED test.

In addition to asking the Court to ignore the context of his failed PED test, and his

strategy to blame Anavite for that failure, Plaintiff also distorted the factual record developed

during discovery.

1) This is a Case About 1-Androstenedione, Not Androstenedione.

Similar to his pleadings, Plaintiff’s opposition brief continues to conflate 1-

androstenedione with androstenedione. The distinction between these two different substances is

critical and Plaintiff’s inability or unwillingness to recognize as much obfuscates the evidentiary

importance of the missing bottle of Anavite.

Plaintiff’s failed PED test administered by USADA detected 1-androstenedione and its

metabolite 1-(5α)-androsten-3α-o1-17-one. See Ex.2 19 (USADA Drug Testing Reports dated

October 24, 2016 and October 28, 2016, and bastes stamped USADA000174-175). 1-

androstenedione is the common name for “5α-1-androstene-3,17-dione,” which is an androstane

analog with an α-bonded hydrogen on carbon 5, a double bond between carbons 1 and 2, and

double-bonded oxygens at carbons 3 and 17. See Ex. 20 at ¶ 32 (Expert Report of Steve J.

Bannister, Ph.D., dated December 7, 2018). It is a banned PED that is exogenous, meaning that

2
All references to “Ex.” refer to the exhibits attached to the Supplemental Declaration of David J. Marck, Esq.,
submitted herewith.

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it is not produced by the human body. Rather, it must be ingested in order to be detected in a

urine sample.

By contrast, androstenedione is the common name used for “4-androstene-3,17-dione,”

which is an androstane analog with a double bond between carbons 4 and 5 and double-bonded

oxygens on carbons 3 and 17. See id. at ¶ 31. Androstenedione is produced by the human body

and is usually present within a certain range when measured in blood or urine tests.

Androstenedione cannot be converted into 1-androstenedione in the human body. Id. at ¶ 38.

Critically, Plaintiff did not fail his PED test due to an overabundance of androstenedione.

Rather, he failed his PED test because USADA’s lab detected 1-androstenedione and its

metabolite in his urine. Accordingly, androstenedione (and another related substance known as

DHEA that Plaintiff references in his opposition) is irrelevant to this case.

That leaves two possible questions before the Court: (1) does all Anavite, regardless of

lot or manufacturing date, contain 1-androstenedione, or (2) if all Anavite does not contain 1-

androstenedione, did the Anavite that Plaintiff was supposedly taking when he failed his PED

test contain 1-androstenedione? As the table below shows, the answer to the first question has

been resolved––all Anavite does not contain 1-androstenedione. In fact, only a single test of

Anavite revealed any 1-androstenedione, and even then, it was only detected at infinitesimal

levels. Thus, the Anavite Plaintiff was allegedly taking in October 2016 is the most critical piece

of evidence in this case.

2) 1-Androstenedione Has Only Been Detected in a Single Lot of Anavite

Multiple lots of Anavite have been analyzed by five different laboratories to determine if

the contain 1-androstenedione. Those test results are as follows:

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Detect 1- Quantity Analytical

Laboratory Date Lot #
Androstenedione? Detected Method

LGC Science,
3/7/17 164141116 No N/A GCMS
Inc.3

370
Sports Medicine nanograms
Research and 164150475 Yes per tablet Not
Testing 3/29/17 – – – Provided
Laboratory in Reports
1641504755 Yes 850
(“SMRTL”)4 nanograms
per tablet

Research
Triangle Park
Laboratories, Inc. 12/4/17 164150475 No N/A GCMS
(“RTP”)6

NSF
1/8/18 174141043E No N/A GCMS
International7

Advanced
Botanical
2/15/18 704141609B No N/A LCMS
Consulting and
Testing, Inc.8

As this table makes clear, every bottle of Anavite does not, as a general matter, contain 1-

androstenedione. At most, two bottles of a single lot of Anavite contained trace amounts of 1-

3
This is the lab that Plaintiff sent a sample, closed bottle of Anavite to in December 2016. See Ex. 21 (LGC
Certificate of Analysis dated March 7, 2017, and bates stamped LGC000005-15).
4
See Ex. 22 (SMRTL Confidential Test Reports dated March 28, 2017, and bates stamped USADA00000983-989).
5
SMRTL tested two bottles from the same lot. One was an opened bottle sent in by an athlete (not Plaintiff) to
USADA. The second bottle was purchased by USADA/SMRTL and was purportedly unopened prior to testing.
6
See Ex. 23 (RTP Laboratory Analysis Report dated December 4, 2017, and bates stamped Hi-Tech&GNI-000004).
7
See Ex. 24 (NSF International Test Report dated January 8, 2018).
8
See Ex. 25 (ABC Test Report dated February 15, 2018, and bates stamped Hi-Tech&GNI-000001-2).

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androstenedione, and even the probative value of that finding is questionable.9 First, the analysis

conducted by SMRTL that detected trace amounts of 1-androstenedione is directly contradicted

by the analysis from RTP, which tested a bottle from the same lot as SMRTL and determined

that it was free of 1-androstenedione. Second, the differing results obtained by SMRTL (tablets

in one bottle supposedly had 370 nanograms of 1-androstenedione per tablet, yet tablets from

another bottle from the same lot somehow had 850 nanograms of 1-androstenedione per tablet)

are indicative of a flaw in their analytical method (which was not supplied on SMRTL’s lab

reports, further clouding the reliability of the results). Put differently, if SMRTL’s analytical

method was reliable, it should have detected similar levels of 1-androstenedione in Anavite,

especially since these tablets came from the same lot.

C. The Missing Anavite is the Most Critical and Probative Piece of Evidence in
this Manufacturing Defect Case

Because Plaintiff cannot show that Anavite contains 1-androstenedione as a general

matter, an analysis of the Anavite that Plaintiff was supposedly taking when he failed his PED

test is the best evidence available to the parties. Plaintiff attempts to argue around this obvious

conclusion by mischaracterizing this matter as a design defect case and stating that Defendants

are therefore supposedly not prejudiced by the missing Anavite’s absence. Pl.’s Opp’n Br. at 4-5.

This is not a design defect case.

“Under New York law, ‘a manufacturing defect . . . results when a mistake in

manufacturing renders a product that is ordinarily safe dangerous so that it causes harm’ and ‘a

design defect . . . results when the product as designed is unreasonably dangerous for its intended

use.’” Catalano v. BMW of N. Am., Ltd. Liab. Co., 167 F. Supp. 3d 540, 554 (S.D.N.Y. 2016)

9
Even if Plaintiff were to have taken six tablets per day, as instructed, the amount of 1-androstenedione consumed
would not, according to Defendants’ expert, have triggered Plaintiff’s positive urine test for 1-androstenedione. See
Ex. 26 at ¶¶ 63-65 (Expert Report of Matthew C. Lee, MD, RPh, MS, dated December 21, 2018).

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(quoting McCarthy v. Olin Corp., 119 F.3d 148, 154-55 (2d Cir. 1997)). “[I]f a product was

manufactured defectively, its defect is likely to be particular to the individual product.

Consequently, a party’s examination of that product may be critical to ascertaining, among other

things, the presence of the defect.” Aktas v. JMC Dev. Co., 877 F. Supp. 2d 1, 20 (N.D.N.Y.

2012) (citing Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir. 1998). On the

other hand, “[i]n design defect cases, a party’s examination of the individual product at issue

may be of lesser importance as the design defect alleged can be seen in other samples of the

product.” Id. (citation omitted).

As the analyses of Anavite described above make clear, 1-androstenedione is not present

in all Anavite, and to the extent it is present at all, it is not the result of a design defect. If it were,

1-androstenedione would be present in all Anavite, which is simply not the case. Thus, the

importance of Defendants’ ability to examine the missing Anavite is high, as is the prejudice that

results from being deprived of that right.10

Moreover, Defendants’ experts agree with this conclusion and Plaintiff’s description of

their testimony to the opposite is untrue. See Pl.’s Opp’n Br. at 1-2. To be clear, both Dr. Lee and

Dr. Bannister testified that the bottle of Anavite that Plaintiff was supposedly consuming at the

time he failed his PED test is the best evidence available to determine whether the missing

Anavite was adulterated, especially in light of the fact that four out of five analyses of Anavite

concluded it is free of 1-androstenedione. See Ex. 27 (S. Bannister Dep. Tr. at 47:2-9 (“Q: In a

case alleging that a certain product has been adulterated, would you agree with me that the best

evidence of whether that happened is to actually test from the bottle of that product that was

ingested prior to the positive urine test? A: That would be the most -- the best tell of the tale,

10
Even if the Court were to consider this a design defect case, case law holds that “both federal and New
York State courts have dismissed defective design cases as a result of plaintiff's spoliation, even where
the spoliation occurred negligently.” Beers, 1999 U.S. Dist. LEXIS 12285, at *21.

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yes.”)); Ex. 28 (Lee Dep. Tr. at 32:9-14 (“[I]t would have been very helpful to have the actual

product that Lyman Good was taking to determine what he was getting from that.”).

D. Dismissal is the Only Appropriate Remedy for Plaintiff’s Spoliation of the

Missing Anavite

The prejudice resulting from Plaintiff’s spoliation requires the Court to dismiss this

action because all adverse inference sanctions available to cure this prejudice would, by their

nature, require dismissal of this action either by summary judgment or directed verdict. This is so

because any permutation of the possible adverse inference requires the jury be instructed, in one

form or another, that they should infer that any analysis of the missing Anavite would not

support Plaintiff’s theory that the Anavite he was taking at the time of his PED test was

adulterated with 1-androstenedione.

Indeed, this exact issue was addressed by the Beers Court under very similar

circumstances, where it held that when a lesser sanction, i.e. an adverse inference, would be

“tantamount to summary judgment against plaintiff,” dismissal is the only appropriate remedy.

See Beers, 1999 U.S. Dist. LEXIS 12285, at *21-26 (citing Pesce v. General Motors Corp., 939

F. Supp. 160, 165 (N.D.N.Y. 1996)). This is so where: (1) “the evidence spoliated is not

circumstantial;” (2) “lesser sanctions may not remedy [Defendants’] prejudice because” they are

deprived of exploring all “potential defense[s];” (3) “no mitigating factors to the spoliation are

present;” and (4) the “[D]efendants herein actually move[d] for dismissal and argue[d] only

dismissal will protect its interests adequately.” Id. at *24-25. Each of these factors are present

here and militate in favor of dismissing the Complaint.

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E. Plaintiff’s Attorney is a Key Fact Witness and Participant in the

Circumstances Surrounding the Spoliation of the Missing Anavite

An attorney that “ought to be called” as a witness is subject to disqualification under New

York DR 5-102(C), which states in full:

If, after undertaking employment in contemplated or pending litigation, a lawyer

learns or it is obvious that the lawyer ought to be called as a witness on a
significant issue on behalf of the client, the lawyer shall not serve as an advocate
on issues of fact before the tribunal, except that the lawyer may continue as an
advocate on issues of fact and may testify in the circumstances enumerated in DR
5-102 [1200.21] (A)(1) through (4).

The test for whether an attorney “ought to be called” is met if “the attorney’s testimony

could be significantly useful to his client . . . .” MacArthur v. Bank of N.Y., 524 F. Supp. 1205,

1208 (S.D.N.Y. 1981). “Where the question (of testimony versus representation) arises doubts

should be resolved in favor of the lawyer testifying and against his becoming or continuing as an

advocate. A party can be represented by other attorneys, but cannot obtain substitute testimony

for a counsel’s relevant, personal knowledge.” Id. at 1209.

Here, Mr. Fish ought to testify regarding his role in the spoliation of the missing Anavite.

Contrary to his protestations, the record regarding the manner in which the Anavite was lost

remains unclear. Mr. Fish takes the position that he sent the opened bottle of Anavite to

NutraBio—no date for this event is provided—but it was lost when NutraBio sent it back to him

via UPS in early November 2016. Pl.’s Opp’n Br. at 3-4; Ex. J to D. Fish Decl. (ECF No. 91).

That position, however, directly contradicts the testimony of Mark Glazier, the CEO of

NutraBio, who stated that he had no recollection of if Plaintiff, his counsel, or anyone else

associated with Plaintiff, ever sent any Anavite to him or NutraBio. Ex. 8 (November 19, 2018

M. Glazier Dep. Tr. at 85:19-86:5). Moreover, the documents submitted via Exhibit J to Mr.

Fish’s Declaration do not indicate that NutraBio sent any Anavite back to Mr. Fish. Rather,

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NutraBio’s HR/Site Director, Judy Mastoserio, described the shipment as “your documents.” See

Ex. J to D. Fish Decl. As such, there are still substantial unresolved factual issues that require

Mr. Fish’s testimony in order to answer. Pursuant to DR DR 5-102(C), Mr. Fish should be

disqualified.

Mr. Fish, however, argues that, even if he were called to testify, he should be permitted to

remain as Plaintiff’s attorney because his disqualification would significantly harm Plaintiff.

Pl.’s Opp’n Br. at 7-8. DR 5-102(A)(4) states: “if disqualification as an advocate would work a

substantial hardship on the client because of the distinctive value of the lawyer as counsel in the

particular case.” Defendants respectfully leave any determination of DR 5-102(A)(4)’s

applicability here to the able discretion of the Court. Defendants, however, submit that if the

Court does permit Mr. Fish to continue in this case, that Plaintiff be required to make a fully

informed waiver of any conflicts arising from Mr. Fish’s breach of DR 5-102(C), as well as his

continued involvement in this matter, that may arise now or on appeal.

III. CONCLUSION

For the reasons stated above and in Defendants’ moving brief, Plaintiffs’ Amended

Complaint should be dismissed as a sanction for his spoliation of the Anavite he was allegedly

taking on October 14, 2016. No lesser sanction will cure the substantial prejudice that has

resulted from Plaintiff’s actions.

Respectfully submitted,

Dated: February 8, 2019 By: s/ Jack Wenik

Jack Wenik, Esq.

Robert M. Travisano, Esq.
David J. Marck, Esq.
EPSTEIN BECKER & GREEN, P.C.
Attorneys for Defendants

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GASPARI NUTRITION, INC., RICHARD

GASPARI, HI-TECH
PHARMACEUTICALS, INC., AND
JARED R. WHEAT

One Gateway Center, 13th Floor

Newark, New Jersey 07102
(973) 642-1900

250 Park Avenue

New York, New York 10177-1211
(212) 351-4500

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