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Direct Biologics, LLC v. Kimera Labs, Inc.

United States District Court, E.D. Missouri, Eastern Division

January 15, 2020

DIRECT BIOLOGICS, LLC, Plaintiff,
v.
KIMERA LABS, INC., Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's Motion to Dismiss Defendant's Second Counter-Claim, [Doc. No. 61]. The motion is fully briefed. For the reasons set forth below, the Motion is denied.

         Facts and Background[1]

         Plaintiff moves to dismiss Defendant's Second Counterclaim for interference with contractual relations. Curiously, Plaintiff argues that the counterclaim must be dismissed for failure to allege the necessary elements of the claim, citing Brown v. Simmons, 478 F.3d 922, 923 (8th Cir. 2007), while arguing in its Response to the Motion to Dismiss Count III that the formulaic recitation of the elements of a claim are not necessary under Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

         With respect to the Second Counterclaim, Defendant alleges the following:

         Anna Stahl ("Stahl") is the founder and Chief Executive Office of XL Medica ("XL"), a medical supply distributor, with a focus on selling regenerative medicine related biologics, based in Ft, Myers, Florida. XL is a distributor of Kimera products. On March 28, 2018, Stahl obtained a telephone number attributed to Greg Murphy ("Murphy"). At the time that Stahl obtained Murphy's telephone number, Murphy had been selling for New Life Regenerative Medicine, a company in the business of, among other things, distributing and selling biologics in the regenerative medicine space.

         On May 16, 2019, Stahl received a text from the number attributed to Murphy. The text contended, regarding exosomes injections, a regenerative medicine related product/service offered by Kimera, that the marketing, legality, and health risks are unknown. The text further represents that Kimera's license had been suspended by the State of Florida. Finally, the text contends that Kimera's "property of record was raided and their corporate officers were criminally arrested for conducting drug raves at their facility last year." Each and every allegation set forth in the text message was false and misleading. Defendant believes Murphy sent Stahl the text message in the course of his employment either by DB or a distributor of DB products with the intention of persuading Stahl and XL to become a distributor of DB products rather that Kimera products.

         Michael Carroll ("Carroll") is the principal of Regenerative Solutions, ("RS"), a medical supply distributor which focuses on selling regenerative medicine related biologics, based in Kansas City, Missouri. Carroll and RS are distributors of Kimera products. Between May 1, 2019 and June 30, 2019, Pat Klinger ("Klinger") an employee of DB, spoke with Carroll by telephone. Klinger requested that Carroll and RS distribute exosomes provided by DB rather than Kimera exosomes. To persuade Carroll, Klinger made the following statements: (1) Duncan Ross, the president of Kimera, was operating Kimera's laboratory out of the back of a nightclub; (2) Kimera has had no shipping or safety validation; (3) DB completed an independent third party lab test of Kimera exosomes, which indicated that the product did not consistently maintain appropriate dosage concentrations so as to be medically viable; (4) DB attempted to convince Kimera's principals, Duncan Ross and Douglas Spiel, to become compliant with appropriate safety regulations, but Kimera refused to do so; (5) Kimera has no tissue bank accreditation or AATB (American Association of Tissue Banks) certification; (6) DB received a large order from Kimera in a poor shipping container and the packages of product crumbled; (7) DB was forced to give away over $350, 000 of product it purchased from Kimera due to the poor quality of the Kimera product; and (8) after FDA's most recent inspection of Kimera's lab, FDA left with more questions than answers.

         Each of the allegations made by Klinger was false and misleading. On information and belief, Klinger made the eight statements to Carroll described above in the course of his employment with DB with the intention of persuading Carroll and RS to become a distributor of DB products rather than Kimera Products.

         During the Christmas season of 2018, Dr. Crispino Santos, a physician in Las Vegas, Nevada who regularly used Kimera regenerative products, particularly exosomes, in his medical practice, sought an immediate order of exosomes to accommodate a particular patient in need. Dr. Santos contacted Carl Thompson, his rep and a distributor of Kimera products, regarding such an order.

         Because of the holiday, Kimera could not provide the products which Dr. Santos needed in a timely fashion. To attempt to nevertheless accommodate the patient, Dr. Santos communicated with Andrew McNaughton ("McNaughton"), who Dr. Santos knows to be either a distributor of DB products or a sales employee of DB. McNaughton advised Dr. Santos that Kimera would be unable to provide exosomes in the future because its lab was unable to maintain appropriate quality control.

         The statement made by McNaughton described in the above paragraph is false and misleading. McNaughton made the statement in the course of his employment by DB or as a distributor of DB with the intention of persuading Dr. Santos to become a customer of DB products rather than Kimera products.

         On information and belief, employees or agents of DB have also made false and misleading statements about Kimera's key personnel and its products to unidentified distributors or customers of Kimera to persuade such distributors or customers to become distributors or customers of DB product. On information and belief, the DB agents or distributors making such false or misleading statements did so in the course of employment for, or as agents of, DB or as a distributor of DB.

         Kimera had an established business relationship with Stahl and XL pursuant to which Stahl and XL were distributors of Kimera products and Kimera had legal rights arising out of the relationship. Kimera had an established business relationship with Carroll and RS, pursuant to which Carrol and RS were distributors of Kimera products, and Kimera had legal rights arising out of the relationship .Kimera had an established business relationship with Dr. Santos, ...


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