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Ferring Pharmaceuticals Inc. v. Braintree Laboratories, Inc.

United States District Court, D. Massachusetts

September 23, 2016

FERRING PHARMACEUTICALS, INC., Plaintiff-Counterclaim Defendant,
v.
BRAINTREE LABORATORIES, INC., Defendant-Counterclaim Plaintiff.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         This case concerns two pharmaceutical companies that have competing products used for bowel cleansing before colonoscopies. Plaintiff/counterclaim-defendant Ferring Pharmaceuticals, Inc. (“Ferring”) claims that Defendant/counterclaim-plaintiff Braintree Laboratories, Inc. (“Braintree”) engaged in false advertising in violation of the Lanham Act and unfair trade practices in violation of M.G.L. ch. 93A. Ferring also alleges that Braintree diluted Ferring's trademark in Prepopik, Ferring's bowel preparation drug, by suggesting that Prepopik presents the same risks as Pico-Salax, a chemically identical product sold in Canada. Braintree counterclaims that Ferring has itself engaged in false advertising in violation of the Lanham Act and unfair trade practices in violation of M.G.L. ch. 93A. In August, 2014, the Court dismissed Braintree's additional counterclaim that Ferring misappropriated trade secrets.

         Pending before the Court are Braintree's motions in limine to exclude testimony from three experts that Ferring intends to call during the trial. For the following reasons, Braintree's motion to exclude the testimony of Dr. Jeffrey Stec will be denied, and its motion to exclude the testimony of Dr. Gerald Bertiger and Philip Johnson regarding physician perceptions will be denied without prejudice.

         I. Factual and Procedural Background

         Ferring, a Delaware corporation based in Switzerland, advertises and sells Prepopik which is used to prep for colonoscopies. Braintree, a Massachusetts corporation with its principal place of business in Braintree, Massachusetts, advertises and sells Suprep which is likewise used prior to colonoscopies.

         In October, 2013, Ferring filed a complaint against Braintree. Braintree answered and filed a counterclaim in November, 2013 and an amended answer and counterclaim in December, 2013. In August, 2014, the Court allowed Ferring's motion to dismiss 1) Braintree's claims that Ferring had misappropriated trade secrets and 2) Braintree's false advertising claims with respect to “flexible dosing” and “helps achieve success.” The Court denied Ferring's motion to dismiss 3) Braintree's false advertising claims relating to “superior cleansing efficacy” and “lowest volume” and 4) Ferring's motion to dismiss claims as to unfair and deceptive trade practices under M.G.L. ch. 93A. The Court also denied Braintree's motion for summary judgment without prejudice and allowed Braintree to amend paragraphs 40 through 42 of its counterclaim.

         Currently before the Court are Braintree's motions in limine to exclude the testimony of Dr. Jeffrey Stec and the testimony of Dr. Gerald Bertiger and Philip Johnson with respect to whether physicians were deceived.

         II. Motions in Limine to Exclude Expert Testimony

         A. Legal Standard

         The admission of expert evidence is governed by Fed.R.Evid. 702 which codified the Supreme Court's holding in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny. United States v. Diaz, 300 F.3d 66, 73 (1st Cir. 2002). Rule 702 charges a district court with determining whether: 1) “scientific, technical, or other specialized knowledge will assist the trier of fact, ” 2) the expert is qualified “by knowledge, skill, experience, training, or education” to testify on that subject, 3) the expert's proposed testimony is based upon “sufficient facts or data, ” 4) that testimony is the product of “reliable principles and methods” and 5) the expert “applies the principles and methods reliably to the facts of the case.”

         The Court must be vigilant in exercising its gatekeeper role because of the latitude given to expert witnesses to express their opinions on matters about which they have no firsthand knowledge and because an expert's testimony may be given substantial weight by the jury due to the expert's status. See Daubert, 509 U.S. at 595; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999).

         The Court must, nonetheless, keep in mind that vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. Daubert, 509 U.S. at 596. If an expert's testimony is within “the range where experts might reasonably differ, ” the jury, not the trial court, should be the one to decide among the conflicting views of different experts. Kumho Tire, 526 U.S. at 153. When a dispute exists between two experts who both use reliable methods, that dispute “[goes] to the weight, not the admissibility, of the testimony.” Cummings v. Standard Register Co., 265 F.3d 56, 65 (1st Cir. 2001).

         B. Application

         1. ...


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