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Plymovent Corp. v. Air Technology Solutions

August 2, 2007

PLYMOVENT CORPORATION, PLAINTIFF,
v.
AIR TECHNOLOGY SOLUTIONS, INC., DEFENDANT / THIRD-PARTY PLAINTIFF,
v.
CLEAN AIR COMPANY, THIRD-PARTY DEFENDANT.
BIOLOGICAL CONTROLS, INC., PLAINTIFF,
v.
PLYMOVENT, A.B. ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Irenas, Senior District Judge

HONORABLE JOSEPH E. IRENAS

OPINION

This matter comes before the Court on the appeal of Biological Controls, Inc. ("Biological") from the Magistrate Judge's Order Quashing a Subpoena Duces Tecum seeking disclosure of materials of a non-testifying expert. For the reasons set forth below, the Court will affirm the order.

I.

This is a lawsuit between competitors who manufacture diesel exhaust removal systems, which are used primarily in fire stations. Both systems are meant to remove exhaust emissions from indoor garages. Biological's system, "AirMATION," filters air through a unit mounted on the ceiling of the garage, whereas Plymovent Corporation's ("Plymovent") hose-based system removes exhaust directly from a vehicle's tailpipe through an attached hose.*fn1

The parties' dispute found its way to this Court on January, 20, 2005, when Plymovent filed a complaint against Air Technology alleging false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a), common law unfair competition, and violation of the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-19. Plymovent sought preliminary injunctive relief on all three claims.

After expedited discovery, this Court held a preliminary injunction hearing on February 17, 2005.*fn2 In preparation for the hearing, Plymovent retained Atlantic Environmental, Inc., to perform a side-by-side emissions control study comparing the performance of Biological's system with Plymovent's system in a fire station. The control study was videotaped, and Henry P. Shotwell, Ph.D., CIH,*fn3 Atlantic Environmental's Vice President, created an accompanying report. Shotwell essentially concluded that Plymovent's system was effective and Biological's system was not. Plymovent submitted both the videotape and the report to the Court in advance of the preliminary injunction hearing.

The parties do not dispute that Plymovent intended to call Dr. Shotwell to testify as an expert witness at the preliminary injunction hearing, and that he was present in the courtroom on the day of the hearing. However, before Plymovent could call Dr. Shotwell, the Court inquired whether Plymovent would like to reconsider its reliance on the videotape and report. The following exchange occurred on the record:

The Court: [A]re you going to rely on that tape and the report that's based on that tape, or are you going to ignore and proceed without it--- . . . You think that helps your case?

Mr. O'Neill: Absolutely, your Honor. For the purposes of today, it provides--

The Court: You don't want to reconsider that position [?]

Mr. O'Neill: Your Honor, what it does--

The Court: I will give you a chance.

Mr. O'Neill: What it does, you Honor, is it provides the Court with a visual representation--

The Court: It's a travesty of the scientific method, it's a travesty. It's the only word I can think of. I'm not saying that if it's done right you might not reach the same results, but who knows. It's a travesty. . . . I don't have to be much of a scientist to know that that report has about 35 different variables in there, none of which are harmonized. I mean it's a travesty. So, I just want to know if you want to rely on it, or you think you have a good case without it.

Mr. O'Neill: I have a very good case without it.

The Court: All right.

(Schoenfeld Decl. Ex. F, preliminary injunction hearing ...


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