United States District Court, D. Massachusetts
FERRING PHARMACEUTICALS, INC., Plaintiff-Counterclaim Defendant,
BRAINTREE LABORATORIES, INC., Defendant-Counterclaim Plaintiff.
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge
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.
motions to strike, Braintree's motion to strike and
Braintree's renewed motion to unseal are currently
pending before the Court.
Factual and Procedural Background
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.
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.
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.
renewed motion to unseal certain documents and testimony is
also pending before the Court.
Ferring's Motions to Strike
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).
Evidentiary Objections to the Declarations of Phillip
Rakhunov, Patrice Pickering and Shannon Meeks and Robert
Klein's Third Survey
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).
The Declaration of Phillip Rakhunov
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
 made on personal knowledge,  set out facts that would
be admissible in evidence, and  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
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.
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.
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 ...