Rowland has failed to demonstrate priority by a preponderance of
the evidence even assuming Rowland's exhibits 2035, 2036 and 2037
to be admissible.
We agree with Weaver that Rowland exhibit 2033 should be
excluded. As discussed above in connection with Rowland's case
on priority, the exhibit is relied on for the truth of the matter
asserted. The exhibit is an evaluation form submitted by Rowland
to prove that Dr. Carr-Locke tested and evaluated the subject
matter of the count in a patient. There is no declaration of one
testifying as to what the evaluation shows or describes. Rowland
relies on the exhibit as demonstrating the truth that the testing
and evaluating were actually performed.
Rowland argues that exhibit 2033 is a record of a regularly
conducted activity (Paper 11 at 5). However, Rowland fails to
provide evidence of this in the form of a declaration of one that
can testify that the exhibit is indeed a record of a regularly
conducted activity. For this reason, we grant Weaver's motion to
exclude Rowland exhibit 2033. Rowland is not prejudiced by our
decision, since we alternatively consider the exhibit 2033 as
discussed supra.
Accordingly, Weaver's motion with respect to RX2035, RX2036,
and RX2037 is dismissed as moot. Weaver's motion with respect to
RX2033 is granted.
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