1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IN RE OUTLAW LABORATORY, LP Case No.: 18-cv-840-GPC-BGS

LITIGATION.

12

ORDER VACATING TRIAL DATE

13 AND GRANTING PLAINTIFF’S

MOTIONS IN LIMINE

14 15 16 \ \ \ 17 \ \ \ 18 \ \ \ 19 \ \ \ 20 \ \ \ 21 \ \ \ 22 \ \ \ 23 \ \ \ 24 \ \ \ 25 26 27 1 I. TRIAL SCHEDULING 2 This case is currently set for a five-day trial beginning on March 8, 2022. Due to 3 the unavoidable congestion of the Court’s trial calendar, and the precedence to which 4 criminal cases are entitled under the Court’s Constitutional obligations, the Court 5 HEREBY VACATES the trial date previously set for this case. A status hearing is set for 6 July 15, 2022 at 1:30 PM. 7 II. PLAINTIFF’S MOTIONS IN LIMINE 8 Pending before the Court are Plaintiffs’1 motions in limine. ECF Nos. 388, 389, 9 390, 391, 392. The Court will address each in turn. 10 A. Motion in Limine No. 1: Amount of Outlaw Settlement (ECF No. 388) 11 Plaintiffs move to exclude the dollar amount of the settlement paid by Outlaw 12 Laboratory, Michael Wear, and Shawn Lynch (“the Outlaw defendants”) as part of the 13 2021 Settlement between the Outlaw defendants and Plaintiffs. ECF No. 388. Under 14 Federal Rule of Evidence (“Rule”) 408(a), a settlement agreement is inadmissible as 15 evidence, unless for a narrow purpose such as proving a witness’ bias or prejudice. Fed. 16 R. Evid. 408(a). To that end, evidence that Michael Wear and Shawn Lynch agreed to 17 testify as part of the settlement agreement is admissible because it goes to the issue of 18 potential bias. However, the settlement amount itself is inadmissible. The Court further 19 concludes that presenting the amount of the settlement to the jury has the potential to 20 confuse and mislead the jury. The Court HEREBY GRANTS Motion in Limine No. 1 21 and excludes the dollar amount of the settlement reached between the Outlaw Defendants 22 and the Stores. 23 24 25 1 Because only the claims of Counterclaimants the Stores (Roma Mikha, Inc., NMRM, 26 Inc., and Skyline Market, Inc.) remain in this action, the Court will refer to them as “Plaintiffs” or “the Stores” for ease of reference. 27 1 B. Motion in Limine No. 2: Criminal Prosecutions of Others (ECF No. 389) 2 Plaintiffs move to exclude “all evidence and argument regarding any criminal 3 prosecutions of importers or other sellers of ‘sex enhancement pills’ of the type that 4 underlie this litigation, and further to exclude evidence and argument regarding the 5 criminal indictment of one of the owners of Outlaw Laboratory, Michael Wear.” ECF No. 6 389 at 2. Specifically, Tauler Smith proposes to call a Mr. Nam Hyun Lee as a witness 7 and admit his guilty plea. See ECF No. 384 (Pretrial Order) at 9, 18. Tauler Smith also 8 lists as exhibits Michael Wear’s indictment for conspiracy to distribute marijuana and an 9 order setting Wear’s bail conditions. Id. at 18 (Exs. X and Y). 10 The Court will exclude evidence of Michael Wear’s indictment as inadmissible 11 impeachment evidence under Rule 609. Fed. R. Evid. 609. Tauler Smith does not propose 12 evidence of Wear’s actual conviction, nor is it clear why distributing marijuana is a crime 13 that would have any bearing on the credibility of Wear’s potential testimony. In addition, 14 the Court finds that evidence of Michael Wear’s indictment for these crimes is of very 15 low probative value, if any, and not relevant to the issues to be decided at trial. 16 The Court will also exclude evidence of Mr. Nam Hyun Lee’s conviction, 17 including his guilty plea and any related documents. Mr. Lee’s situation is substantially 18 different from the context of the instant litigation, in that Mr. Lee was prosecuted by the 19 government for smuggling and importing drugs, rather than sued by a private party for 20 retail sales under RICO and/or the Lanham Act. Thus, his prosecution, conviction, and 21 criminal history have extremely low probative value, if any, and little relevance to the 22 issues central to this case. The Court will also exclude this evidence based on a tendency 23 to confuse the jury, who might think that the government’s success in prosecuting Mr. 24 Lee lends credence to Tauler Smith’s actions as a non-governmental actor. 25 The Court further excludes Tauler Smith’s Exhibit B, “selected criminal 26 prosecutions over related products throughout the country” for the same reasons 27 1 articulated above, related to Mr. Lee. The Court HEREBY GRANTS Motion in Limine 2 No. 2 and excludes evidence regarding the criminal prosecutions of any persons, 3 including Michael Wear and Nam Hyun Lee. 4 C. Motion in Limine No. 3: Denials of Demurrers and Motions to Dismiss 5 in Other Outlaw Cases (ECF No. 390) 6 Plaintiffs seek to exclude Tauler Smith’s Exhibit H, which consists of three orders: 7 (1) the overruling of a demurrer brought by one of the defendants in Outlaw Laboratory 8 v. Lucky Liquor & Mini Mart, et al. (L.A. Sup. Ct. No. SC129302); (2) the overruling of 9 a demurrer in an unspecified California jurisdiction, Case No. BC706471, brought by 10 defendants Overland Mobil Mart and MV Petroleum Corp.; and (3) the denial of a 11 motion to dismiss brought by a defendant in Outlaw Laboratory v. US1 Novelties LLC, et 12 al., No. 18-cv-2065-AT in the Northern District of Georgia. See ECF No. 390 at 2. 13 All three of these cases are decisions on the pleadings stage—i.e., they do not look 14 to the underlying merits of the action, but simply assess whether Outlaw met its burden of 15 pleading at the outset of litigation. As such, they have very little probative value for 16 Tauler Smith’s proposed use: to show that courts ruled in Outlaw’s favor on the merits, 17 thus making it reasonable for them to send the demand letters at issue. The Court finds 18 that these cases have a high likelihood of confusing the jury, which outweighs their 19 minimal probative value, as a jury is unlikely to understand the difference between a 20 motion on the pleadings and a motion on the merits. In addition, any explanation of the 21 difference would waste valuable trial time while producing little benefit for either side. 22 To be clear, the Court is unconvinced that these three cases lend support for Tauler 23 Smith’s contention in the first place. If Tauler Smith were offering cases predating the 24 instant litigation in which a judge had ruled in their favor, even at the pleadings stage, 25 that would be one thing. But each of the three cases offered in Exhibit H was decided 26 after Tauler Smith and Outlaw filed the initial Complaint in this action. Therefore, any 27 1 decision rendered in Tauler Smith and Outlaw’s favor in these three cases could not 2 possibly have lent credence to Tauler Smith’s legal theory and supported the legal 3 soundness of the letters to the Stores before they were sent. Even if such orders could be 4 assumed to a post-hoc vindication of Tauler Smith’s approach—which, since they are not 5 orders on the merits, they cannot be—the Court finds that the cases are excludable 6 evidence due to their low probative value and tendency to confuse the jury and waste 7 time at trial. Given the timing of the decisions, the cases certainly do not lend support to 8 the theory that Tauler Smith’s demands were supported by their own legal victories at the 9 time that the demand letters were sent out in the instant action. The Court therefore 10 GRANTS Motion in Limine No. 3. 11 D. Motion in Limine No. 4: Health Effects Attributed to Subject Pills (ECF 12 No. 391) 13 Plaintiffs seek to exclude evidence or arguments as to adverse health effects 14 allegedly caused by the sexual enhancement pills at issue, including Tauler Smith’s 15 proposed witness, Maxine Fleming. ECF No. 391 at 2. According to Tauler Smith’s 16 witness list, Ms. Fleming will be called to testify that her husband had a stroke after 17 consuming the subject pills. 18 The Court will exclude Ms. Fleming’s testimony on several grounds. First, the 19 testimony of a nonparty as to her husband’s stroke has little or no relevance to the 20 question of Tauler Smith’s potential liability under RICO. Second, such testimony 21 would have a tendency to confuse and mislead the jury into thinking that such health 22 effects formed a reasonable basis for Tauler Smith’s legal theory in sending the letters. 23 Third, such testimony would constitute improper lay witness opinion under Rule 701, 24 which precludes lay persons from expressing an opinion on scientific matters beyond the 25 realm of an ordinary person’s knowledge. Fed. R. Evid. 701. That includes, as here, the 26 27 1 precise medical causation of a stroke, which is the subject only of proper expert 2 testimony. 3 The Court will also exclude Tauler Smith’s proposed Exhibit O, “articles relating 4 to the dangers and deaths associated with male sexual supplements,” because of the 5 evidence’s low probative value as it relates to the issues at trial, and because such 6 evidence would have a tendency to confuse and mislead the jury. The Court HEREBY 7 GRANTS Motion in Limine No. 4. 8 E. Motion in Limine No. 5: Matters Relating to Gaw Poe LLP (ECF No. 9 392) 10 Plaintiffs seek to exclude two matters relating to Gaw Poe LLP: (1) Tauler Smith’s 11 proposed Exhibit Z, “2/27/2019 wire sent from Akrum Alrahib to Gaw Poe” and (2) 12 Tauler Smith’s plan to call Mr. Poe, the Stores’ trial counsel, as a potential witness 13 during trial. 14 As to Exhibit Z, the Stores explain that “Tauler Smith has identified a February 15 2019 Comerica statement of Trendsettah USA, Inc. as its posposed Exhibit Z.” ECF No. 16 392-1 at 3. Plaintiffs note that Trendsettah is “a former client who is wholly unrelated to 17 this litigation.” Id. at 2. Tauler Smith’s Opposition to the motions in limine fails to 18 address the issue of Exhibit Z at all, and the pretrial order chart of Tauler Smith’s 19 proposed exhibits does not provide any further description of Exhibit Z. Therefore, the 20 Court will exclude Exhibit Z as wholly irrelevant to the litigation at hand. 21 Turning to whether Tauler Smith should be able to call Mr. Poe as a witness, the 22 Court first looks to the California Rules of Professional Conduct, which govern 23 attorneys appearing before courts in this state. Real Estate Training International, LLC 24 v. Nick Vertucci Cos., Inc., 124 F.Supp.3d 1005, 1006 (C.D. Cal. 2015). California Rule 25 of Professional Conduct 3.7 states that a lawyer shall not act as an advocate in a trial in 26 which the lawyer is likely to be a witness unless the (1) lawyer’s testimony relates to an 27 1 uncontested issue or matter; (2) the lawyer’s testimony relates to the nature and value of 2 legal services rendered in the case; or (3) the lawyer has obtained formal written consent 3 from the client. CA ST RPC Rule 3.7. The rule thus reflects that calling a party’s 4 advocate as a witness is disfavored. See People v. Linton, 56 Cal.4th 1146, 1148 (2013) 5 (“Only in extraordinary circumstances should an attorney in an action be called as a 6 witness, and before the attorney is called, defendant has an obligation to demonstrate 7 that there is no other source for the evidence he seeks.”) 8 Tauler Smith offers little by way of explanation for why Mr. Poe’s testimony as a 9 witness at trial would be necessary. Cf. Benas v. Baca, 2003 WL 21530209 (C.D. Cal. 10 Jul. 1, 2003) (allowing attorney to testify as witness where testimony would be “highly 11 relevant” to impeachment of percipient witness). In the pretrial order, Tauler Smith notes 12 that “[a]lthough Tauler Smith recognizes it is unusual to call Plaintiffs’ counsel at trial, 13 doing so is necessary here because Mr. Poe personally provided evidence the Court 14 relied on in denying summary judgment . . . Tauler Smith anticipates Mr. Poe will testify 15 about the nature and circumstances behind the Vice News story.” ECF No. 384 at 11. 16 The Opposition briefing adds that “his testimony is directly relevant to offset.” ECF No. 17 394. The Court concludes that these reasons are too thin to support the unusual and 18 disfavored action of calling Mr. Poe, the Stores’ lead trial counsel, as a witness at trial. 19 Nothing in Tauler Smith’s explanation points to why Mr. Poe, rather than any other 20 witness, is absolutely necessary to provide testimony about the Vice News story. Nor is 21 the Court convinced that Mr. Poe’s testimony is necessary as to any offset issues— 22 which, in any case, will most likely be a matter for the Court, not the jury, to decide after 23 the liability phase of the trial has concluded. Allowing Tauler Smith to call Mr. Poe as a 24 witness will lead to a cascade of potential issues involving disqualification and possible 25 prejudice to Mr. Poe’s clients. Weighing the possibility of that harm, the Court 26 27 1 || HEREBY GRANTS Motion in Limine No. 5 and excludes Mr. Poe as a potential 2 || witness at trial. 3 CONCLUSION 4 The Court accordingly GRANTS Plaintiffs’ Motions in Limine, ECF Nos. 388, 5 |} 389, 390, 391, 392. 6 IT IS SO ORDERED. 7 Dated: February 18, 2022 8 Hon. athe Cae 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18-cv-840-GPC-BGS