IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

___________________________________

ADVOCARE INTERNATIONAL L.P., *

*

Plaintiff, *

v. *

 *

HORIZON LABORATORIES, INC., *

RICHARD PAUL SCHECKENBACH *

R-SQUARED NUTRITION, INC., and *

HERBASIA CORPORATION, * Civil No. 3:04-CV-1988-H

 *

Defendants, *

v. *

 *

ROBERT HACKMAN, *

 *

Third-Party Defendant. *

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiff Advocare International, L.P.’s Objection and Motion to

Exclude Expert Testimony, and supporting brief and appendix, filed November 18, 2005; and RSquared Nutrition’s and Richard Scheckenbach’s Response to Advocare’s Motion to Exclude Expert

Testimony, and supporting brief and appendix, filed December 8, 2005.

Also before the Court are R-Squared Nutrition’s and Richard Scheckenbach’s Objection and

Motion to Exclude Expert Testimony of Advocare’s Expert Mark Foglietta, and supporting brief,

filed November 23, 2005; Plaintiff Advocare International, L.P.’s Response to Objection and Motion

to Exclude Expert Testimony, and supporting brief and appendix, filed December 12, 2005; and

Reply of R-Squared Nutrition and Richard Scheckenbach, and supporting appendix, filed December

27, 2005.

 

 Case 3:04-cv-01988-D Document 238 Filed 01/24/06 Page 1 of 5 PageID 3432
 See Advocare Int’l, L.P. v. Horizon Labs., Inc., Civ. No. 3:04-CV-1988-H (N.D. Tex. 1

May 19, 2005); id. (August 2, 2005); id. (January 13, 2006).

2

For the reasons that follow, both motions are denied.

I. BACKGROUND

A detailed factual and procedural background of this case has been related previously and

will not be repeated here. Among other issues and parties, Plaintiff Advocare International, L.P. 1

[“Advocare”] sues Defendant Richard Scheckenbach and related entities ["Scheckenbach

Defendants”] for various causes of action arising from their business relationship in the nutritional

supplement industry. The case is set for trial on February 6, 2006.

Advocare now asks the Court to exclude the testimony of expert witness Mark A. Brudnak,

retained by the Scheckenbach Defendants. The Scheckenbach Defendants ask the Court to exclude

the testimony of expert witness Mark Foglietta, retained by Advocare. Both motions are without

merit.

II. ANALYSIS

The admissibility of expert testimony in a federal trial is governed by federal law. Edwards

v. Sears, Roebuck and Co., 512 F.2d 276, 292 (5th Cir. 1975) (rejecting the parties’ citation of state

law). In the motions before the Court, both movants rely heavily on the decisions of Texas state

courts. Those decisions are inapposite.

Under federal law, the determination whether to exclude expert testimony is within the sound

discretion of the trial court. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); Tyler

v. Union Oil Co. of Cal., 304 F.3d 379, 392 (5th Cir. 2002). Rule 702 of the Federal Rules of

Evidence reads in relevant part:

 

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If . . . specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise if (1) the

testimony is based upon sufficient facts or data, (2) the testimony is

the product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702; see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). With this

standard in mind, the Court turns to the pending motions.

A. Scheckenbach Defendants’ Expert Mark A. Brudnak

In the first motion before the Court, Plaintiff Advocare moves to exclude the testimony of

the Scheckenbach Defendants’ expert witness, Mark A. Brudnak. It is undisputed that Brudnak

holds a biology degree from the University of Southern California; holds doctorates in Naturopathy

and Natural Health from the (unaccredited) Clayton College of Natural Health; and has completed

a significant portion of a Ph.D. program for molecular biology and biotechnology at the University

of Tulsa. Plaintiff argues, however, that Brudnak is not qualified to offer opinions on the market

price of raw materials in nutritional supplements, and on the use of Certificates of Analyses for raw

materials in that industry; and that his opinions are based solely on mere subjective belief and not

on reliable methodology. In particular, Plaintiff argues that Brudnak has not completed any

coursework on raw materials pricing; has not compared costs of the exact raw materials at issue in

this case; and has not reviewed various other relevant materials.

In opposition, the Scheckenbach Defendants respond that apart from Brudnak’s academic

credentials, Brudnak has worked since 1997 in various capacities, including technical director and

vice president of technology, for MAK Wood, Inc., a distributor to the food and nutritional

 

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supplement industries. The Defendants offer evidence that a significant portion of MAK Wood’s

business involves buying, selling, and otherwise dealing with raw materials.

After reviewing the memoranda and appendices from both parties, the Court makes the

following findings: On the basis of experience and education, Brudnak is sufficiently qualified to

offer expert testimony on costs and standards in the nutritional supplement industry, including its

raw materials market. See Mathis v. Exxon Corp., 302 F.3d 448, 460 (5th Cir. 2002) (discussing the

burden and standard of admissibility). Moreover, the Court finds that Brudnak’s relevant experience

is sufficiently extensive to provide a reliable basis for his opinions. The issues that Plaintiff raises,

though proper grounds for cross-examination, do not affect Brudnak’s status as an expert witness

under Rule 702. See Daubert, 509 U.S. at 596 ("Vigorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate

means of attacking shaky but admissible evidence."); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250

(5th Cir. 2002) (quoting Daubert and reversing the trial court's exclusion of expert opinion).

Accordingly, Plaintiff’s motion is DENIED.

B. Advocare’s Expert Witness Mark Foglietta.

Mark Foglietta, C.P.A., is Advocare’s expert witness on the issue of damages. The

Scheckenbach Defendants move to exclude his testimony for insufficient facts and data; and for the

consequent lack of reliability of Foglietta's opinion.

Like Plaintiff’s motion, the Scheckenbach Defendants’ motion fails. It is undisputed that

Foglietta is a Certified Public Accountant and Certified Public Analyst with an MBA from Baylor

University. He was hired to compute, among other things, the price variance for raw materials sold

to Horizon Laboratories, Inc., by Scheckenbach. In so computing, he represents that he reviewed

 

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thousands of documents, including invoices, purchase orders, receiving lists, and shipping

documents; and that he compiled a master database tracing raw material lot numbers from origin to

final sale. In short, he crunched numbers in time-honored accountant fashion. See Tuf Racing

Prods., Inc. v. American Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000) (affirming

admissibility of damages testimony by a CPA using financial data supplied by the parties to the

case). The Scheckenbach Defendants' arguments go to the legal measure of damages, which will be

determined by the Court in the jury charge, and to financial assumptions and results appropriate for

cross-examination. See Tyler, 304 F.3d at 393 (affirming admissibility of expert opinion for which

underlying facts and conclusions were disputed). The arguments do not, however, impact the

threshold matter of admissibility. See Daubert, 509 U.S. at 592 (emphasizing principles and

methodology as grounds for admissibility).

Accordingly, Foglietta may offer expert testimonyon the issue of Advocare's damages in this

case. The Scheckenbach Defendants' motion is DENIED.

III. CONCLUSION

For the reasons given above, Advocare's expert witness, Mark Foglietta, and the

Scheckenbach Defendants’ expert witness, Mark A. Brudnak, will be allowed to offer opinion

testimony to the jury, subject to cross-examination and objection in the normal course of events at

trial. Advocare's motion to exclude expert testimony, and the Scheckenbach Defendants’ motion

to exclude expert testimony, are both DENIED.

SO ORDERED. 

DATED: January 24, 2006.

___________________________________

BAREFOOT SANDERS, SENIOR JUDGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

 

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