Ferring Pharmaceuticals Inc. v. Braintree Laboratories, Inc.

Filing 577

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER. "For the foregoing reasons, 1) Braintrees motion to exclude the testimony of Dr. Jeffrey Stec (Docket No. 284) is DENIED, and2) Braintrees motion to exclude the opinions of Dr. Gerald Bertiger and Philip Johnson regarding physician perceptions (Docket No. 346) is DENIED WITHOUT PREJUDICE. So ordered."(Lima, Christine)

United States District Court
District of Massachusetts
)
)
)
Plaintiff-Counterclaim )
)
Defendant,
)
)
v.
)
)
BRAINTREE LABORATORIES, INC.,
)
Defendant-Counterclaim )
)
Plaintiff.
)
FERRING PHARMACEUTICALS, INC.,

Civil Action No.
13-12553-NMG

MEMORANDUM & ORDER
GORTON, J.
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

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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
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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
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“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).

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B. Application
1. Dr. Jeffrey Stec
Ferring plans to have Dr. Jeffrey Stec testify as an expert
witness regarding whether and how much Braintree’s actions
caused economic harm to Ferring.

Dr. Stec’s analysis relies on

a disgorgement rather than a lost profit theory: he conducted a
multivariate regression analysis to determine if Braintree’s
sales of Suprep increased as a result of Braintree’s alleged
false advertising.

Specifically, Dr. Stec compared what

Braintree’s sales would have been absent the alleged misconduct
with what Braintree’s sales actually were.

Braintree asserts

that the testimony of Dr. Stec should be excluded on Daubert
grounds.

According to Braintree, Dr. Stec’s testimony is

unreliable because it employs an inverse cubic trend model
instead of a linear model for Suprep sales and ignores
undisputed facts.
Braintree’s objections to Dr. Stec’s testimony go to the
weight, not the admissibility, of Dr. Stec’s expert opinions.
Although Braintree raises concerns about Dr. Stec’s use of
inverse cubic regression,
regression analysis is a well recognized and scientifically
valid approach to understanding statistical data, and
courts have long permitted parties to use statistical data
to establish causal relationships.

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In re Neurontin Mktg. & Sales Practices Litig., 712 F.3d 21, 42
(1st Cir. 2013).

Braintree’s contention that a linear model

would better fit the case goes to the strength of Dr. Stec’s
conclusion, not to the reliability of his methods.
Braintree also complains that Dr. Stec’s analysis leaves
out key variables.

Braintree finds it problematic that Dr.

Stec’s regression did not include the fact that Moviprep, the
third major competitor in the branded bowel prep treatment
market, was no longer being promoted and decreased its market
share during the time analyzed.

Braintree further takes issue

with the fact that Prepopik was not on the market for a portion
of the time examined in Dr. Stec’s analysis.

Ferring asserts

that Dr. Stec left Moviprep out of his regression analysis
because including it did not significantly affect the analysis
and suggests that there is a factual disagreement with respect
to the ongoing effect of the advertisements.
Failure to consider particular variables is not fatal to an
expert’s testimony, especially if the information that the
expert did use was correct. Cummings, 265 F.3d at 65.

Dr.

Stec’s failure to include the variables flagged by Braintree may
decrease the helpfulness of his testimony to the jury but it
does not render the testimony inadmissible.

Therefore, the

Court will deny Braintree’s motion to exclude Dr. Stec’s
testimony.
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2. Motions in Limine to Exclude the Opinions of Dr.
Gerald Bertiger and Philip Johnson Regarding Whether
Physicians were Deceived
a. Dr. Gerald Bertiger
In addition to Dr. Stec, Ferring intends to call Dr. Gerald
Bertiger as an expert witness.

Dr. Bertiger is a

gastroenterologist who has 30 years of experience in the field
and has conducted over 25,000 colonoscopies himself.

According

to Dr. Bertiger’s expert report, he will offer testimony
regarding whether the Canadian Newsletter, the “What’s Not New
About Prepopik” flyer (“comparison detailer”) and the “Super
Clean” advertisement are materially false.
Braintree asserts that insofar as Dr. Bertiger’s testimony
involves speculation about the perceptions of other doctors, his
testimony should be excluded.

Braintree contends that Dr.

Bertiger only spoke with a few salespersons and doctors who were
aware of the three publications at issue, essentially asserting
that Dr. Bertiger lacks sufficient foundation to testify broadly
regarding perceptions of the Canadian Newsletter, the comparison
detailer and the Super Clean advertisement.

Braintree’s

objection focuses on a few exchanges that occurred during Dr.
Bertiger’s deposition.

Braintree carefully limits its objection

and does not quibble with Dr. Bertiger’s expert qualifications
or testimony concerning clinical trials.

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Braintree’s objection is fundamentally about striking very
limited portions of Dr. Bertiger’s testimony for a lack of
foundation.

The First Circuit Court of Appeals has previously

allowed expert testimony regarding how individuals make
decisions in a specialized field. See First Marblehead Corp. v.
House, 541 F.3d 36, 41 (1st Cir. 2008) (holding that an expert
witness with almost 20 years of experience as a finance and
economics consultant who provided investment advice permissibly
testified about how individuals “choose investments and arrange
portfolios”).

While the Court assumes the role of “ensuring

that an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand,” Currier v. United Techs.
Corp., 393 F.3d 246, 251 (1st Cir. 2004) (internal quotations
and citations omitted), such a determination is better suited
for trial.

Consequently, the Court will deny Braintree’s motion

to strike Dr. Bertiger’s testimony regarding physician
perceptions without prejudice.
b. Philip Johnson
Ferring plans to call Philip Johnson as a rebuttal witness
in response to Braintree’s market research expert, Robert Klein.
Mr. Klein designed and conducted three surveys for Braintree
that examined 1) doctors’ beliefs regarding the accuracy of
certain sources of information about drugs, 2) the information
gastroenterologists glean from the comparison detailer and 3)
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the information that a Prepopik advertisement communicates.

Mr.

Klein also wrote a report as to his conclusions based on his
surveys.

As is Mr. Klein, Mr. Johnson is a market research

expert.
Braintree contends that Mr. Johnson’s testimony that
Braintree’s comparison detailer indicates to readers that
Prepopik is neither safe nor effective is unreliable because the
survey at issue did not include a control that measured the
beliefs of survey takers before they participated in the study.
Braintree further complains that Mr. Johnson offers testimony
that will assist Ferring in its case-in-chief and thus is not
properly rebuttal testimony.
Braintree’s objections are without merit.

Mr. Johnson has

an M.B.A. from the University of Chicago and has apparently
overseen hundreds of surveys regarding consumer perceptions.

He

offers permissible expert testimony under Fed. R. Evid. 702 that
calls into question the conclusions of Braintree’s expert, Mr.
Klein. Cf United States v. Valdivia, 680 F.3d 33, 50–51 (1st
Cir. 2012).

If expert testimony “rests upon good grounds, based

on what is known, it should be tested by the adversarial
process.” Milward v. Acuity Specialty Prod. Grp., Inc., 639 F.3d
11, 15 (1st Cir. 2011) (internal quotations and citation
omitted).

Any issues with the lack of a control group go to the

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weight, not the admissibility, of Mr. Johnson’s testimony.
Cummings, 265 F.3d at 65.
Moreover, Braintree’s objections to Mr. Johnson’s testimony
are contradictory: it argues that Mr. Johnson’s testimony forms
new rather than rebuttal conclusions but also that Mr. Johnson
cannot submit his conclusions because he did not use a control
group.

Mr. Johnson presumably did not use a control group

because, instead of conducting studies of his own, he limited
his testimony to rebutting Mr. Klein’s studies.

Braintree

cannot have its cake and eat it too by simultaneously arguing
that Mr. Klein is not a rebuttal witness but that he should have
conducted his own study.

It is within this Court’s discretion

to permit Mr. Johnson to testify. Diefenbach v. Sheridan
Transp., 229 F.3d 27, 30 (1st Cir. 2000).

The Court will deny

the motion to exclude Mr. Johnson’s testimony without prejudice.

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ORDER
For the foregoing reasons,
1) Braintree’s motion to exclude the testimony of Dr.
Jeffrey Stec (Docket No. 284) is DENIED, and
2) Braintree’s motion to exclude the opinions of Dr. Gerald
Bertiger and Philip Johnson regarding physician
perceptions (Docket No. 346) is DENIED WITHOUT PREJUDICE.

So ordered.

/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated September 23, 2016

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