E-Alert Case Updates

Sprinter’s Claims Against Dietary Supplement Manufacturer Are Rejected

DeRosier, Jr. v. USPLabs, LLC
(D. Md.) (Nov. 17, 2011),
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

This suit arose from the use by Plaintiff, Philippe E. DeRosier, Jr., (“Mr. DeRosier”), of a supplement named Jack3D, which was manufactured by Defendant USPLabs. In June 2009, in advance of a track meet in Istanbul, Turkey, Maryland-based sprinter, Mr. DeRosier, consumed Jack3D in order to “give him energy” for his race. Approximately two months later, Mr. DeRosier was informed that he had tested positive for the banned substance, 2-Methyl-2-Hexamine (“MHA”), and the U.S. Anti-Doping Agency (“USADA”) took action against him under a “catch-all” provision in the World Anti-Doping Agency’s (“WADA”) list of internationally prohibited substances. Thereafter, Mr. DeRosier entered into an agreement with the USADA to voluntarily accept a six-month suspension, and retain his opportunity to try out for the 2012 Olympics.

When Mr. DeRosier returned to competition, the stigma of being identified as a “doper” allegedly prevented him from competing in the 2010 U.S. National Track and Field Championships, and he has been unable to pursue his sprinting career since then. He also claimed that he lost out on valuable shoe endorsement contracts and potential future employment as a coach due to his consumption of the MHA. Therefore, Mr. DeRosier filed a complaint against USPLabs, LLC, and its chief executive officer, for negligence, strict liability, breach of implied warranty of merchantability, negligent misrepresentation, fraudulent concealment, and unfair or deceptive trade practices under the Maryland Consumer Protection Act. The complaint alleged loss of past earnings and future earning capacity, and non-economic losses, due to the Defendants’ failure to warn Mr. DeRosier that Jack3D contained MHA. Mr. DeRosier sought $1.8 million in damages.

The Defendants moved to exclude the testimony of Mr. DeRosier’s proffered expert witness, Mr. Eric Merriweather (“Mr. Merriweather”). Mr. Merriweather’s report asserted that “if not for [Mr. DeRosier’s] positive test for a banned substance in 2009,” Mr. DeRosier would have received endorsement contracts and appearance fees and prize money, including a five-year base salary from a shoe endorsement contract totaling $450,000. The report concluded that Mr. DeRosier would have earned approximately $1,685,000 over five years, if he had not taken Jack3D.

The Defendants argued that Mr. Merriweather’s testimony was inadmissible because he lacked the qualifications to provide an informed estimation of damages, and because he employed an unreliable and unprincipled methodology to reach his conclusions. They contended that Mr. Merriweather had neither the expertise nor the experience to qualify as a damages expert, and that his credibility was further undermined by the fact that he was Mr. DeRosier’s “friend” and “mentor” and wrote the report free of charge.

Specifically, Mr. Merriweather’s report provided estimates as to Mr. DeRosier’s lost earnings and earning capacity, but it failed to support those estimates with even the most basic information about Mr. DeRosier’s past records or rankings, or with relevant industry standards. Neither the report nor Mr. Merriweather’s subsequent deposition provided information that would be necessary to support the assertions contained within his report, such as Mr. DeRosier’s previous rankings, race times, or career trajectory. For example, the report projected that Mr. DeRosier would have earned $650,000 for top scores in major national and international competitions, and $500,000 in appearance fees and prize money, but did not provide a specific breakdown as to how many races he would have had to run per year and how he would have had to have been ranked in those races to achieve those earnings. Indeed, Mr. Merriweather testified that he did not know – either at the time of his deposition or at the time of writing the report – Mr. DeRosier’s past rankings. He did not even know how many races Mr. DeRosier had run in previous years. Not to mention, Mr. Merriweather did not even know Mr. DeRosier’s age, the status of his health, projected career length or trends in his sprinting speeds over time. Further, the report offered no information about Mr. DeRosier’s past earnings as a competitive runner. To top it off, Mr. Merriweather testified that he could not remember exactly how he reached some of his financial estimates.

In sum, Mr. Merriweather’s report and subsequent deposition were utterly lacking in information about industry standards, the earnings and racing practices of similarly situated athletes, and even basic personal facts about Mr. DeRosier that could support his estimates about lost earnings and earning capacity. Therefore, the Court concluded that there was “simply too great an analytical gap between the data in the opinion proffered” to admit Mr. Merriweather’s testimony. “An essential part of the court’s gate keeping function is to ensure that the expert testimony is more than mere speculation,” and the Court could not find that Mr. Merriweather’s testimony, though sincere, rose above the level of conjecture. Thus, without reaching the question of Mr. Merriweather’s qualifications as an expert witness, his testimony was excluded based on its wholly speculative inconclusory methodology.

Absent the evidence proffered by Mr. Merriweather, Mr. DeRosier lacked evidence of damages, which was a required element in each of his claims. Without Mr. Merriweather’s testimony, Mr. DeRosier could not establish his future lost earnings or earning capacity with any degree of reliability.

Having failed to establish damages or harm resulting from the Defendants’ allegedly tortious acts, Mr. DeRosier could not meet his burden to establish a prima facie case on any of the claims he set forth. Therefore, summary judgment was granted in the Defendants’ favor.