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Boston Scientific Corp. v. Edwards Lifesciences Corp.

United States District Court, D. Delaware

January 10, 2018



          Sherry R. Fallon Judge.

         At Wilmington this 10th day of January, 2018, the court having considered the parties' discovery dispute submissions and the arguments presented during the October 25, 2017 hearing (D.I. 275; D.I. 276; D.I. 277; D.I. 278; D.I. 279; 10/25/17 Tr.), IT IS HEREBY ORDERED THAT: (1) the motion to strike the invalidity contentions of Edwards Lifesciences Corporation, Edwards Lifesciences PVT, Inc., and Edwards Life Sciences LLC (collectively, "Edwards"), filed by plaintiffs and counterclaim defendants Boston Scientific Corp. and Boston Scientific SciMed, Inc. and third-party defendant Sadra Medical, Inc. (collectively, "BSC") is denied, and BSC is permitted to take additional limited discovery regarding the PVT prototypes; (2) BSC's motion to strike Edwards' expert opinions regarding the Sapien 3 Ultra device ("S3U") is denied, and BSC is permitted to take additional discovery regarding the S3U in the form of document discovery, deposition discovery from a fact witness regarding the regulatory process, and deposition testimony from expert regulatory witnesses; and (3) BSC's motion to strike the errata from the deposition of Mr. Assaf Bash is denied, for the reasons set forth below.

         1. Motion to Strike Edwards' Invalidity Contentions. In support of its motion, BSC contends that the court should strike Edwards' invalidity contentions served on June 30, 2017, and any expert opinions that rely on those contentions, because Edwards delayed in identifying the additional references until the last day of fact discovery, denying BSC the opportunity to take discovery on the newly-cited prior art references. (D.I. 275 at 1-2) For the following reasons, BSC's motion to strike is denied, and BSC is permitted to take additional limited discovery regarding the PVT prototypes in the form of documents and additional limited deposition testimony from Assaf Bash, Laksen Sirimanne, and Stan Rowe.

         2. Background. Pursuant to the terms of the scheduling order in the above-captioned matter, Edwards was required to serve the final supplementation of its identification of invalidity references by April 7, 2017, and its final invalidity contentions were due on May 5, 2017. (D.I. 34 at ¶ 1(g)(3) & (h)) The record reflects that Edwards served a final supplementation of its invalidity references on April 7, 2017, identifying 153 written references and 20 allegedly invalidating devices. (D.I. 139; D.I. 275, Ex. 1) Edwards subsequently served its final invalidity contentions on the May 5, 2017 deadline. (D.I. 169; D.I. 275, Ex. 2)

         3. On May 26, 2017, BSC took the Rule 30(b)(6) deposition of Assaf Bash, an employee of Edwards. (D.I. 275, Ex. 8) At the Bash deposition, BSC's counsel marked as exhibits the photographs of prototypes produced by Edwards in November 2016. (D.I. 278, Exs. 16-19) BSC's counsel also inspected and asked questions about the prototypes themselves during the Bash deposition. (Id., Exs. 20-28) Mr. Bash testified that Stan Rowe, another Edwards employee, had knowledge regarding certain other prototypes. (D.I. 275, Ex. 8 at 386:21-387:13)

         4. On June 29, 2017, BSC took the deposition of Stan Rowe. (D.I. 278, Ex. 30) At the deposition, Mr. Rowe testified that he disclosed several of the Percutaneous Valve Technologies ("PVT") prototypes[1] in the United States in 2001 and 2002, and counsel for Edwards brought the prototypes to the Rowe deposition. (Id. at 109:13-112:23)

         5. Fact discovery closed on June 30, 2017. (D.I. 153 at ¶ 1) On the same date, Edwards served its second supplemental invalidity contentions, purporting to add as prior art references the Lambrecht References and several of the PVT prototypes identified by Mr. Rowe. (D.I. 278, Ex. 31)

         6. On July 14, 2017, BSC notified Edwards of its intention to file a motion to strike in the event that Edwards' expert were to include any of the new prior art references in its expert reports. (D.I. 275, Ex. 4) The parties met and conferred on July 21, 2017, but on July 25, 2017, Edwards indicated its belief that its second supplemental invalidity contentions were proper, and expressed an intention to include the newly added prior art references in its expert reports. (Id., Ex.5)

         7. On August 3, 2017, Edwards' expert, Dr. Nigel P. Buller, served his opening expert report on invalidity, which incorporated an analysis of the PVT prototypes introduced at Mr. Rowe's deposition. (D.I. 277, Ex. 1)

         8. On August 31, 2017, BSC's expert, Dr. Stephen J.D. Brecker, inspected the PVT prototypes introduced at Mr. Rowe's deposition. (D.I. 278, Ex. 35) Dr. Brecker submitted his rebuttal expert report, which addressed the PVT prototypes, on September 21, 2017. (D.I. 279, Ex. 37 at 87-93)

         9. Legal standard. Invalidity contentions are considered to be "initial disclosures" under Federal Rule of Civil Procedure 26(a). See United States District Court for the District of Delaware, Default Standard for Discovery § 4(d). A failure to disclose or supplement pursuant to Rule 26(a) or (e) "may lead to [the] exclusion of the materials in question" under Rule 37(c)(1). Lambda Optical Solutions, LLC v. Alcatel-Lucent USA Inc., C.A. No. 10-487-RGA-CJB, 2013 WL 1776104, at *2 (D. Del. Apr. 17, 2013). Rule 37(c)(1) provides that "[i]f a party fails to provide information... as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1).

         10. Motions to strike invalidity contentions as untimely are reviewed in accordance with the "Pennypack'' factors: (1) the prejudice or surprise to a party against whom the evidence is offered; (2) the ability of the injured party to cure the prejudice; (3) the likelihood of disruption of trial; (4) bad faith or willfulness involved in not complying with the disclosure rules; and (5) the importance of the evidence to the proffering party. See Meyers v. Pennypack Woods Home Ownership Ass % 559 F.2d 894, 904 (3d Cir. 1977). "Trial judges are afforded wide discretion in making rulings on the admissibility of evidence." Quinn v. Consol. Freightways Corp. of Del., 283 F.3d 572, 576 (3d Cir. 2002) (citations omitted).

         11. "[T]he exclusion of critical evidence is an 'extreme' sanction, not normally to be imposed absent a showing of willful deception or 'flagrant disregard' of a court order by the proponent of the evidence." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d Cir. 1994). Consequently, "evidence should be excluded sparingly and only in circumstances involving litigation conduct that is clearly unprofessional or inappropriate, and in circumstances creating prejudice to the party against whom the evidence is offered." Bridgestone Sports Co. Ltd. v. Acushnet Co., C.A. No. 05-132-JJF, 2007 WL 521894, at *4 (D. Del. Feb. 15, 2007). However, "[c]ourts applying the Pennypack factors in the case of sophisticated, complex litigation involving parties represented by competent counsel have been less indulgent in their application and more willing to exclude evidence without a strict showing that each of the Pennypack factors has been satisfied." Id. (citing Astrazeneca AB v. Mutual Pharm. Co., 278 F.Supp.2d 491 (E.D. Pa. 2003)).

         12. Analysis. As a preliminary matter, the court finds that the facts of the present case are distinguishable from the cases relied upon by BSC in its letter submission because Edwards supplemented its invalidity contentions within the fact discovery period. Cf. Bridgestone Sports Co. Ltd. v. Acushnet Co., CA. No. 05-132-JJF, 2007 WL 521894 (D. Del. Feb. 15, 2017) (granting motion to strike where invalidity contentions were due on August 11, 2006, fact discovery closed on October 10, 2006, and six prior art references were added to the invalidity contentions on December 14, 2006); Praxair, Inc. v. ATMI, Inc., 231 F.R.D. 457 (D. Del. 2005) (granting motion to strike where fact discovery closed on April 15, 2005, and new prior art references were disclosed thereafter and relied on in the May 2, 2005 expert report); see also Fairchild Semiconductor Corp. v. Power Integrations, Inc., CA. No. 12-540-LPS, 2015 WL 1883960, at * (D. Del. Apr. 24, 2015) (granting motion to strike where fact discovery closed in December 2013 and invalidity contentions were supplemented in March 2014); Intermec Techs. Corp. v. Palm Inc., CA. No. 07-272-SLR, 2010 WL 2340228 (D. Del. June 7, 2010) (denying motion to strike where fact discovery closed on May 29, 2009 and invalidity contentions were supplemented on July 23, 2009). BSC also relies on Intellectual Ventures I LLC v. AT&T Mobility LLC, in which the defendant objected to the disclosure of a new infringement theory in the infringement contentions two weeks before the close of fact discovery as untimely. CA. No. 13-1668-LPS, 2017 WL 658469, at *1 (D. Del. Feb. 14, 2017). In passing, the court in Intellectual Ventures characterized the newly-added infringement contentions as "legally deficient and untimely served, " but the analysis itself focused on the plaintiffs failure to serve infringement contentions that applied the court's claim construction. Id. at *2-3 (noting the untimeliness of the infringement contentions without specifying the date the contentions were served, the date the contentions were due, or the fact discovery deadline). Given the lack of case authority supporting Edwards' motion to strike the invalidity contentions solely on the basis of untimeliness when those contentions were filed within the fact discovery period, the court declines to expand the ruling in Intellectual Ventures.

         13. The court next turns to an evaluation of the Pennypack factors. The first factor, regarding the prejudice to the party against whom the evidence is offered, weighs in favor of granting BSC's motion to strike. BSC suffered prejudice from the untimely disclosure of the second supplemental invalidity contentions because the late production prevented BSC from being able to take its own discovery on the newly-produced prototypes. However, several considerations mitigate the prejudice suffered by BSC. First, BSC's expert, Dr. Brecker, was able to address the prototypes in his expert report after inspecting the prototypes following the close of fact discovery. (D.I. 279, Exs. 33-36; Ex. 37 at 87-93) Second, the prototypes were disclosed at the Bash deposition over a month prior to their inclusion in the invalidity contentions. (10/25/17 at 21:20-22:2; D.I. 275, Ex. 8 at 69:24-70:14) Counsel for BSC questioned both Bash and Rowe regarding the newly-disclosed ...

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