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Ferring Pharmaceuticals Inc. v. Braintree Laboratories, Inc.

United States District Court, D. Massachusetts

October 14, 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 involves two pharmaceutical companies that have developed and marketed competing products used for bowel preparation 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 the Massachusetts Consumer Protection Act, M.G.L. ch. 93A (“Chapter 93A”). Ferring also claims that Braintree diluted Ferring's trademark in its product, Prepopik, by suggesting that it 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 Chapter 93A. In August, 2014, this Court dismissed Braintree's additional counterclaim that Ferring misappropriated trade secrets.

         Ferring's motions to strike, Braintree's motion to strike and Braintree's renewed motion to unseal are currently pending before the Court.

         I. Factual and Procedural Background

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

         In October, 2013, Ferring filed a complaint against Braintree which answered and counterclaimed. In August, 2014, this Court allowed Ferring's motion to dismiss Braintree's counterclaims that Ferring had misappropriated trade secrets and falsely advertised with respect to “flexible dosing” and “helps achieve success.” The Court denied Ferring's motions to dismiss 1) Braintree's false advertising counterclaims relating to “superior cleansing efficacy” and “lowest volume” and 2) Braintree's counterclaims relating to unfair and deceptive trade practices under Chapter 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.

         On April 22, 2016, Ferring filed motions for summary judgment on Braintree's counterclaim, its own claims and Braintree's affirmative defenses. Braintree, in turn, filed its own motion for summary judgment. The following motions to strike relating to the summary judgment motions are currently before the Court:

1) Ferring's motion to strike the declaration of Phillip Rakhunov, Braintree's counsel,
2) Ferring's motion to strike the declarations of Dr. Douglas Rex, John McGowan and Patrice Pickering,
3) Ferring's motion to strike the declarations of Dr. Douglas Rex, John McGowan, Dr. Jack DiPalma, Patrice Pickering and Shannon Callahan Meeks,
4) Ferring's motion to strike certain opinion testimony of Robert Klein and
5) Braintree's motion to strike Ferring's replies to Braintree's counterstatements of material facts.

         Braintree's renewed motion to unseal certain documents and testimony is also pending before the Court.

         II. Ferring's Motions to Strike

         Ferring has filed numerous motions to strike declarations and testimony that Braintree offers in support of its motions for summary judgment and/or its oppositions to Ferring's motions for summary judgment. Based upon evidentiary grounds, Ferring moves to strike the declarations of Phillip Rakhunov, Braintree's counsel, Patrice Pickering and Shannon Callahan Meeks, two Braintree employees, and Robert Klein's third survey and related testimony. Ferring also moves to strike the declarations of Dr. Douglas Rex, John McGowan and Dr. Jack DiPalma on the grounds that Braintree failed to disclose those individuals as experts or provide expert reports in accordance with this Court's deadline and Fed.R.Civ.P. 26(a)(2)(B).

         A. Evidentiary Objections to the Declarations of Phillip Rakhunov, Patrice Pickering and Shannon Meeks and Robert Klein's Third Survey

         1. Legal Standard

         At the summary judgment stage, the Court may consider only evidence that would be admissible at trial. Fed.R.Civ.P. 56(c)(3). Moreover, the party offering the evidence must demonstrate that the declarant has personal knowledge about the evidence and is competent to testify about it. Id.; see also, e.g., Hoffman v. Applicators Sales and Serv., Inc., 439 F.3d 9, 14 (1st Cir. 2006).

         2. Analysis

         a. The Declaration of Phillip Rakhunov

         In support of its motion for summary judgment, Braintree submitted the declaration of Phillip Rakhunov, one of Braintree's attorneys. That declaration summarizes evidence that Ferring produced in discovery, including emails, presentations, internal updates and records of conversations with physicians. Ferring asserts that Attorney Rakhunov's declaration fails to meet the Fed.R.Civ.P. 56(c) requirements that such declarations be

[1] made on personal knowledge, [2] set out facts that would be admissible in evidence, and [3] show that the affiant or declarant is competent to testify on the matters stated.

Id. According to Ferring, Attorney Rakhunov's declaration contains impermissible opinion evidence, inadmissible hearsay and lacks foundation. Braintree responds that the declaration contains descriptions rather than opinions and that the evidence described is excluded from the hearsay rule.

         As an initial matter, the many declarations Ferring's counsel submitted to support or oppose various motions seriously weaken its assertion that Attorney Rakhunov lacks personal knowledge and is not competent to testify. To the extent that the declaration contains impermissible opinions or conclusions without necessary foundation, the Court will disregard those portions of the declaration in its consideration of the motions.

         Ferring's evidentiary objections require a more detailed analysis. Ferring is correct in its assertion that it is “black-letter law” that impermissible hearsay cannot be considered for summary judgment. Fed.R.Evid. 801(d)(2); Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d 9, 17 (1st Cir. 2007). If an out of court statement is used for a non-hearsay purpose or falls within an exclusion to the hearsay rule, however, it may be considered for summary judgment. Davila, 498 F.3d at 17.

         Here, the statements to which Attorney Rakhunov refers in his declaration include emails from various Ferring employees, such as sales representatives, the national sales director, the director of business intelligence and medical science liaisons. The declaration also refers to Ferring's internal updates, presentations and reports. These are statements by Ferring's employees made in the course of their employment and are thus excluded from ...


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