ChromaDex today sent a letter to the judge in the New York case requesting permission to submit hundreds of pages of additional evidence to definitively refute Elysium's claim that ChromaDex's product was also contaminated with toluene. You can read the documents here:
Well this is fascinating. The letter is just two paragraphs, and asks to provide evidence that "definitively demonstrates that ChromaDex did not sell to consumers products which [sic: Cooley, check Strunk & White on that/which] contained toluene."
The 300 pages of attached evidence is certificates of analysis from every batch of BluScience pterostilbene showing that none contained detectable levels of toluene.
How did BluScience get into this?
Let's go back to Elysium's summary judgment argument (the one that they submitted after midnight). In that filing, Elysium states,
ChromaDex sold products containing pTeroPure directly to consumers under the brand name BluScience, and claimed that the pTeroPure, which ChromaDex has knowingly sold with toluene present, was [GRAS].
ChromaDex is saying that's a lie, and here are the certificates to prove it. Actually, ChromaDex is way more polite than that, and says,
In light of Elysium’s counsel’s memorandum of law and declaration without personal knowledge or evidentiary support—which implies the opposite, we submit that this additional evidence may assist the Court in deciding the motion for summary judgment. (emphasis added)
Okay, so let's dissect why this matters.
First, ChromaDex said there's toluene in your product [FDA Petition]
Then Elysium said, there's toluene in your product, too [Elysium's Opposition Brief, quoted in Judge McMahon's opinion]
And ChromaDex replied, maybe, but only in our wholesale ingredients, not in our direct-to-consumer products, and that matters, because the wholesale ingredients get further processed and diluted, so that there isn't any toluene left in the resulting direct-to-consumer products. [ChromaDex's MSJ Brief]
And then Elysium said, nuh-uh, because you DID have a direct-to-consumer product, and we know there is toluene in your pterostilbene. [Elysium's MSJ Brief]
And now ChromaDex says, NOPE. No toluene in our direct-to-consumer product, and we hereby prove it. [300+ pages of proposed evidence]
This matters for two reasons. First, and most directly, Judge McMahon said that she would find it "damning" if ChromaDex had done the same thing it complained about in its FDA petition. Judge McMahon's exact words: "Most damning on the issue of objective baselessness is Elysium's contention that CMDX's PT product, pTeroPure®, also contains toluene in levels comparable to the toluene in Basis."
I have argued that it might be damning in some subjective moral sense, but that damnation would NOT meet the objectively baseless legal test for Noerr-Pennington. ChromaDex has gone a step further and said, it did not happen.
Second, and more interesting, Cooley already characterized one of Elysium's claims in California as "fictional," and I have already argued here how the evidence emerging in discovery is giving the lie to Elysium's story about what happened.
So if the judge in New York thinks that Elysium has just been caught in a lie, or in a carefully worded statement that implies something beyond the truth, it could cause her to take a more critical look at all of Elysium's assertions.