Medecor Pharma, L.L.C. et al v. Fleming and Company, Pharmaceuticals
Filing
106
RULING granting 64 , 65 and 68 Motions in Limine. The Clerk of Court's Office shall terminate document 66, as it is a duplicate of document 68. Signed by Judge James J. Brady on 4/23/2014. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MEDECOR PHARMA LLC, and
BRADLEY SANDERS
CIVIL ACTION
VERSUS
NO. 12-291-JJB-RLB
FLEMING PHARMACEUTICALS,
INC.
RULING ON MOTIONS IN LIMINE
This matter is before the Court on the following motions: (1) Motion [doc. 64] in Limine
to Exclude Plaintiffs’ Expert Ken Sobel; (2) Motion [doc. 65] in Limine to Exclude Plaintiffs’
Expert Melody Matthews; and (3) Motion [doc. 68] in Limine to Exclude the Opinion of
Defendant’s Experts. At the status conference held on February 12, 2014, the Court ordered the
plaintiffs to “brief the issue of whether the expert testimony is relevant to the remaining issues
for trial,” in light of this Court’s ruling on the motions in summary judgment. (Doc. 93). The
plaintiffs timely filed their memorandum, and the defendant filed an opposition. (Docs. 98 &
101).
In paragraph 7 of the “Confidential Information Non-Disclosure Agreement” (“the
NDA”), the parties provided that:
Each party expressly acknowledges that breach of its obligations under this
Agreement would cause irreparable injury to the disclosing party and that money
damages would not be a sufficient remedy. Consequently, as a remedy for breach
by the receiving party, the disclosing party shall be entitled to seek specific
performance and injunctive relief, as well as other remedies available at law or
equity.
(Doc. 62-5, p. 4). The plaintiffs contend that the NDA’s specific-performance provision relates
to the parties’ contemplated business relationship, as opposed to the defendant’s contention that
this provision only allows for specific performance of the NDA itself. (Doc. 105, p. 5). Because
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the NDA provides for specific performance and other remedies available in law or equity, and
because “specific performance has been frustrated due to the defendant’s sale of the sought after
license,” the plaintiffs assert that this Court has the power to assess monetary damages, which
includes lost profits from the proposed business relationship. (See doc. 105, p. 1). As the
confidentiality provision in the “Summary of Principal Terms” document does not contain a
similar specific-performance provision, the plaintiffs’ relevancy argument could only apply to
the confidentiality provisions found in the NDA.
After considering the relevant briefs, and for the reasons provided in the defendant’s
memorandum (doc. 101) in opposition, the Court excludes the expert testimony of Ken Sobel,
Melody Matthews, Timothy Snail, George Love, and Phillip Dristas, as this Court finds that their
testimony is not relevant to the remaining issues set for trial. While the plaintiffs refer to the
“overall deal negotiated by the parties, as outlined in the Term Sheet,” the Court has ruled that
no such deal ever existed. As this Court previously found, the term sheet did not constitute a
deal, contract, or otherwise. Rather, it was a completely non-binding document, used for
discussion purposes only. To find that the “specific performance” requirement in the NonDisclosure Agreement would enforce an agreement that this Court previously found did not
exist, and thereby assess damages for lost profits, would be nonsensical. The NDA’s specific
performance requirement refers to specific performance of the NDA itself, and not to any
“overall deal negotiated by the parties, as outlined in the Term Sheet.” Therefore, any expert
testimony as to the profits that would have resulted if the parties consummated their business
relationship is irrelevant to assessing damages resulting from the defendant’s alleged breach of
the NDA confidentiality provision.
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The plaintiffs also cite to Multimatic, Inc. v. Faurecia Interior Systems USA, Inc., as an
analogous case that “reflects light on the case sub judice.” (Doc. 105, p. 7). See also 358 Fed.
Appx. 643 (6th Cir. 2009). However, that case is distinguishable from the one at hand. In
Multimatic, the Sixth Circuit ruled that the jury could find that the “parties contemplated lostproduction profits for breaching the confidentiality agreement” at issue in the case. 358 Fed.
Appx. at 650. The Sixth Circuit held that “[t]he jury . . . had a sound basis for concluding that
[the defendant] would have selected Multimatic as its supplier absent a breach of the
confidentiality agreement,” because “[t]he evidence showed that [the defendant] had little choice
. . . but to agree to Multimatic’s terms.” Id. at 651. However, the present case does not fall into
that unique and rare set of circumstances. Rather, the present case falls within the general rule
that the Sixth Circuit outlined in its Multimatic ruling: “No doubt, unaccepted offers and
preliminary negotiations generally do not establish the basis for a damages award. And no doubt,
in a mine-run case, this rule makes sense because it approaches conjecture, if not enters that
forbidden territory, to assume that both parties would agree to one party’s quote or even that both
parties would reach a final agreement.” Id. (internal citations omitted).
Therefore, the Court (1) GRANTS the Motion [doc. 64] in Limine to Exclude Plaintiffs’
Expert Ken Sobel; (2) GRANTS the Motion [doc. 65] in Limine to Exclude Plaintiffs’ Expert
Melody Matthews; and (3) GRANTS the Motion [doc. 68] in Limine to Exclude the Opinion of
Defendant’s Experts. Additionally, the Clerk of Court’s office shall terminate Document 66, as it
is duplicative of Document 68.
Signed in Baton Rouge, Louisiana, on April 23, 2014.
JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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