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Boston Scientific Scimed, Inc. v. Edwards Lifesciences Corp.

United States District Court, D. Delaware

November 9, 2018

BOSTON SCIENTIFIC SCIMED, INC., Plaintiffs,
v.
EDWARDS LIFESCIENCES CORP., Defendant. EDWARDS LIFESCIENCES CORP., EDWARDS LIFESCIENCES PVT, INC., and EDWARDS LIFESCIENCES LLC, Counterclaim and Third-Party Plaintiffs,
v.
BOSTON SCIENTIFIC CORP., BOSTON SCIENTIFIC SCIMED, INC., and SADRA MEDICAL, INC., Counterclaim and Third-Party Defendants. BOSTON SCIENTIFIC SCIMED, INC., Plaintiff,
v.
EDWARDS LIFESCIENCIES LLC, Defendant.

          MEMORANDUM ORDER

          Sherry R. Fallon, United States Magistrate Judge.

         At Wilmington this 9th day of November, 2018, the court having considered the Motion to Consolidate Actions filed by Boston Scientific Scimed, Inc. ("Boston Scientific") (D.I. 471), [1] IT IS HEREBY ORDERED THAT Boston Scientific's motion to consolidate is DENIED for the reasons set forth below:

         1. Background.

         On April 19, 2016, Boston Scientific filed suit against Edwards (the "First Action"), alleging infringement of U.S. Patent No. 8, 992, 608 ("the '608 patent"). (D.I. 1) On June 9, 2016, Edwards Lifesciences Corporation ("Edwards Corp."), Edwards Lifesciences PVT, Inc., and Edwards Lifesciences LLC ("Edwards LLC") (collectively, "Edwards") filed an answer and counterclaims for noninfringement and invalidity of the '608 patent, and asserting claims for infringement of U.S. Patent Nos. 9, 168, 133, 9, 339, 383, and 7, 510, 575 (collectively, the "Spenser Patents"). (D.I. 10; D.I. 301) On August 1, 2016, Edwards Corp. served an interrogatory response identifying "Edwards Lifesciences LLC" as a company that manufactured the Sapien 3 product. (D.I. 443 at 5; D.I. 460 at 6)

         2. Fact discovery in the First Action closed on June 30, 2017. (D.I. 153 at ¶ 1) Expert discovery was completed on December 1, 2017. (D.I. 34)

         3. Briefing on the parties' summary judgment motions in the First Action was completed on April 2, 2018. (D.I. 407) There are currently seven motions for summary judgment pending before the court. (D.I. 302; D.I. 306; D.I. 307; D.I. 328; D.I. 335; D.I. 336; D.I. 337)

         4. On May 17, 2018, Boston Scientific moved to amend the complaint to add Edwards LLC as a defendant in the First Action. (D.I. 442) On September 19, 2018, the court issued a Memorandum Opinion denying the motion to amend for failure to show good cause under Rule 16(b)(4). (D.I. 460) Specifically, the court found that Boston Scientific knew of its potential claim against Edwards LLC in June 2016, but did not seek to bring a claim against Edwards LLC until May 2018. (Id. at 5-6) Boston Scientific's objections to the Memorandum Opinion remain pending. (D.I. 468)

         5. On October 3, 2018, Boston Scientific filed a new action against Edwards LLC (the "Second Action"), alleging infringement of the '608 patent. (C.A. No. 18-1535, D.I. 1) According to Boston Scientific, the new action was necessitated by Edwards' failure to disclose the entity responsible for the manufacture and sale of the accused Sapien 3 device until the last day of fact discovery. (D.I. 472 at 3)

         6. A ten-day jury trial is scheduled to begin in the First Action on November 26, 2018. (D.I. 455)

         7. Legal standard.

         Pursuant to Federal Rule of Civil Procedure 42(a), courts have the authority to consolidate actions involving a common question of law or fact. Fed.R.Civ.P. 42(a); see also Oracle Corp. v. epicRealm Licensing, L.P., C.A. No. 06-414-SLR, 2007 WL 901543, at *5 (D. Del. Mar. 26, 2007). While decisions to consolidate are discretionary, the court should "balance considerations of efficiency, expense, and fairness." Resnik v. Woertz, 774 F.Supp.2d 614, 624 (D. Del. 2011) (citing United States v. Dentsply Int'l, Inc., 190 F.R.D. 140, 142-43 (D. Del. 1999)). The court must weigh "the savings of time and effort gained through consolidation ... against the inconvenience, delay or expense that might result from simultaneous disposition of the separate actions." Outten v. Wilmington Tr. Corp., 281 F.R.D. 193, 196-97 (D. Del. 2012) (citing Waste Distillation Tech., Inc. v. Pan Am. Res., Inc., 775 F.Supp. 759, 761 (D. Del. 1991)).

         8. Analysis.

         In support of its motion, Boston Scientific contends that consolidation of the First and Second Actions is warranted because both actions were filed by Boston Scientific against an Edwards entity, both complaints assert identical questions of law and fact regarding infringement of the '608 patent by Edwards' Sapien 3 product, Edwards' defenses and third-party claims and counterclaims will be the same in both actions, and there is no need for additional discovery in the new case. (D.I. 472 at 6-7) In response, Edwards alleges that Boston Scientific's motion is an impermissible attempt to circumvent the court's denial of its motion to amend the complaint. (D.I. 482 at 4-6) Moreover, Edwards argues that consolidation will result in delays to the trial schedule of the First Action because Edwards has yet to file its answer and counterclaims[2] or conduct discovery on Edwards LLC's alleged liability and damages in the Second Action. (Id. at 7-9)

         9. Boston Scientific's motion to consolidate is denied. As a preliminary matter, courts within the Third Circuit discourage parties from filing a new action as an end run ...


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