CELLFOOD v. THE HENKEL FORMULA NuScience v. Henkel : VP David McKinney Declaration "I, DAVID McKINNEY, declare as follows: I have personal knowledge of the matters set forth herein, and if called upon as a witness, would and could competently testify thereto. I was Vice President of NuScience. All of the information set forth herein is the result of my having served in that apacity and of having directly participated in the events as to which this and my prior declaration relate. This declaration responds solely to the claim made by NuScience in its reply brief that the statements in my prior declaration are “spurious”. After I was informed of the current proceeding, I could not allow myself to remain silent regarding what I had seen done at NuScience and what I was specifically directed to do. My reasons for coming forward at this time relate to what I view as an attack on the Henkels based on the false claim that NuScience was the owner of the formula claimed to be owned by the Henkels. NuScience never had the Henkels’ formula before it was given to NuScience by the Henkels’ Iowa attorney. With respect to the Henkel’s formula, I saw the seed sample that came from the Henkels, a sample that was specifically requested through Lumina so that we could see what the Henkels had. It was entirely different from NuScience’s product. Kevin Negrete informed me that NuScience would pursue litigation against the Henkels in order to ascertain what the Henkel formula was. The concern that he expressed to me was that the Henkels might draw undue attention to NuScience and cause its own products to be further scrutinized. That, in turn, would result in questions being asked about how our product could be Everett Storey’s formula when we had previously denied having the ingredients that Everett Storey claimed were in his formula. The Henkels’ claims were all the more troublesome to NuScience because the statements were occurring at the same time that NuScience was dealing with export issues, specifically relating to production of the product, documentation for production, and documentation relating to ingredients. On October 31, 2006, Mark Rubin of Lumina Health sent an e-mail to Kevin Negrete and me in which was described a “concentrated 7 day closedown” to create all of the documents needed to get past Canada’s import approval process. A true copy of that e-mail is attached hereto as Exhibit 1. As Vice President of NuScience, I was aware of the fact that prior to Mark Rubin’s request, no such SOP’s, records, or logs existed. With respect to Health Canada’s requirements relating to production facilities, I was specifically directed by Mark Rubin to create floor plans that included all of the required elements. I did so despite the fact that many of the required elements, while depicted on the plans, did not exist, were not planned for, and as of my last date of employment with NuScience, were never part of the production facilities. True copies of the e-mails responding to requests to add the elements are attached hereto collectively as Exhibit 2. On November 7, 2006, Mark Rubin sent an e-mail to me in which he asked me to send 90 days of logs. In that e-mail, he stated “we have so many to fabricate here...""
Posted on: Mon, 22 Jul 2013 07:10:07 +0000
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