HILL v. BEST MEDICAL INTERNATIONAL, INC.

Filing 164

MEMORANDUM OPINION re: 117 MOTION for Summary Judgment filed by ACCURAY, INC., 137 MOTION for Summary Judgment filed by ROBERT W. HILL, 139 MOTION for Summary Judgment filed by JOHN DAVID SCHERCH, MARCUS D. BITTMAN, DAVID SPELLMAN. Signed by Judge William L. Standish on 10/24/2011. (Attachments: # 1 Continuation of Memorandum Opinion) (md)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT W. HILL,

Plaintiff,
vs.

Civil Action No. 07-1709
(Related to CA No. 08-1404
and CA No. 09-1194)

BEST MEDICAL INTERNATIONAL,
INC. ,
Defendant.
BEST MEDICAL INTERNATIONAL,
INC. ,
Plaintiff,
vs.
DAVID SPELLMAN, JOHN DAVID
SCHERCH and MARCUS D. BITTMAN,

Civil Action No. 08-1404
(Related to CA No. 07-1709

and CA No. 09-1194)

(All cases consolidated at

CA No. 07 - 1 7 0 9 )

Defendants.
BEST MEDICAL INTERNATIONAL,
INC. ,
Plaintiff,
vs.
ACCURAY, INC., a corporation,
ROBERT HILL, DAVID SPELLMAN,
JOHN DAVID SCHERCH, MARCUS
BITTMAN, JOHN DOE ONE, JOHN
DOE TWO, JOHN DOE THREE, JOHN
DOE FOUR and JOHN DOE FIVE,
individually,

Civil Action No. 09-1194
(Related to CA No. 07-1709
and CA No. 08-1404)
(All cases consolidated at
CA No. 07 - 1 7 0 9 )

Defendants.

MEMORANDUM OPINION
On December 14,

2007,

Robert Hill filed a

straight-forward

breach of contract claim against his former employer, Best Medical

International, Inc., alleging he had been denied severance benefits
after his job responsibilities were substantially reduced during a
corporate reorganization and downsizing.

In the following four

years, this and two related cases have mushroomed to include claims
of trade secret misappropriation, breach of non-compete and non­
disclosure

agreements,

contracts,
attempt

conspiracy,

tortious

interference

aiding and abetting breach of fiduciary duty,

to

add

consolidated

a

in

patent

March

infringement

2010

for

claim.

pretrial

The

reached the summary judgment stage simultaneously.

and an

cases

proceedings

with

and

were
have

In this omnibus

opinion, we consider the three pending motions and grant summary
judgment in favor of the moving parties on all issues.

I.

INTRODUCTION
Common Facts 1

A.

Beginning in 1993, Robert Hill ("Hill") was employed by
NOMOS Corporation

("NOMOS"), a manu

cturer of radiation therapy

equipment.

The equipment provided by NOMOS and other companies in

this

requires

field

complex

precise

computer

radiation

programming

achieve

extremely

therapy.

acqui

by North American Scientific, Inc.

in

order

to

After NOMOS was

("NAS"), Hill assumed

the title of Vice President for Engineering & Development.

In this

The facts in this section are undisputed and are taken from the parties'
statements and exhibits at Docs. No. 120, 121, 129, 130, 131, 133, 134,
138, 141, 142, 150, 151, 155, 156, 160 and 161.
Additional facts are
provided as each individual claim or counterclaim is discussed below.
1

2

position,

he

had

access

information used by NOMOS,

to

confidential

e.g.,

and

trade

secret

computer source code and files

regarding the company's products and services, product development
documents and information, and marketing research materials.
In February 2001, Hill entered into an agreement with NOMOS
which contained confident

ity provisions and a clause prohibiting

him from working for any NOMOS compet
after he left the company

or for a period

two years

("the Hill-NOMOS Agreement.")

It also

provided that any successor-in-interest to NOMOS would have the
right to enforce the Hill-NOMOS Agreement.
On April

23,

2007,

NOMOS,

NAS,

and

Hill

entered

into

an

additional agreement which provided certain salary and health care
benefits triggered by two sets of circumstances:
(i) involuntary termination of your employment
[NOMOS] other than Termination for Cause or

with

(ii) your voluntary resignation within
following

days

ty

(60)

(A) a change in your position at [NOMOS] which
materially reduces your duties and responsibilities
or
(B) a relocation of your principal place of
employment by more than fifty(50) miles.
(Complaint, Doc. No. 1,

~

10; see also Exh. B thereto, emphasis in

original.)2
On September 11, 2007, NOMOS and Best Medical International,

2
Unless otherwise noted,
Medical, CA No. 07-1709.

docket

numbers are those

3

in Hill

v.

Best

Inc.

("BMI" or "Best Medical"),

which

BMI

acquired

entered into an agreement under

substantially

Purchase Agreement.")

all

BMI develops,

of

NOMOS's

assets

manufactures,

("the

and supplies

medical providers throughout the United States with oncology and
radiation
systems,

therapy products
image guided

(e. g.,

radiation

radiation

treatment

therapy systems,

planning

and conformal

radiation therapy systems.)
BMI acquired certain confidential and proprietary information
and

trade

secrets

belonging

Purchase Agreement.

to

NOMOS

under

Another provision

certain liabilities of NOMOS,

the

required

terms
BMI

of

to

the

assume

including the agreements NOMOS had

with some of its employees, except for obligations to pay retention
bonuses or provide stock benefits.

This provision applied to the

employment and severance agreements between Hill and NOMOS.
Almost immediately after the Purchase Agreement was signed
(i.e.,

after

"the

Acquisition"),

BMI

began

restructuring

reorganizing the departments acquired from NOMOS.

Whi

and

Hill was

out of the office on vacation for a few days in late September
2007,

a

consultant

hired

by

BMI

met

with

employees

of

the

Engineering Department and explained that all product development
functions

would be

out sourced and the

responsibilities

of

BMI

engineers would be limited to defining the products to be developed
via outsourcing.

Hill was not

management

it

before

was

made

advised
and
4

did

of
not

this

change by BMI

learn

of

it

until

affected employees spoke with him afterward.
Whi
with

the

on vacation, Hill had travelled to California to meet
management

("Accuray. ")
planning

ke

systems

of

a

BMI,
and

company
Accuray

image

called

provides

guided

Accuray

Corporation

radiation

therapy

treatment

systems.

Hill

interviewed with several managers with the intention of going to
work

Accuray soon thereafter.
On October 1, 2007, Hill met with the president and owner of

BMI, Krishnan Suthanthiran, along with other senior members of the
BMI management team.

Mr. Suthanthiran formally advised Hill of the

change in product development strategy about which employees in the
Engineering Department had already been told,
that his new pos

and informed Hill

ion would be Director of Software

entity to be called Best Medical Research.

an new

On October 2, 2007, Mr.

Suthanthiran terminated the employment of several employees who
reported to Hill, again without prior consultation, and scheduled
meetings with six others for October 3.
On October 4, 2007, Hill submitted a resignation letter to BMI
in

which

he

stated

he

believed

he

was

entitled

to

severance

benefits under the circumstances, that is, he was resigning within
60

days

reduction
D.)

after

a

change

in

position

resulting

his duties and responsibilities.

a

(Doc. No.

material
I, Exh.

In-house counsel for BMI responded that company management did

not believe there had been any change in Hill's position which
5

materially reduced his

job duties or responsibilit

therefore no severance applied.

(Id.,

Exh.

s

and that

On October 24,

E.)

2007, Hill received an offer for the position of Senior Director of
Treatment Planning Systems with Accuray and began employment with
the company on November 14, 2007.
Three other BMI employees, all of whom had reported to Hill,
left soon after and eventually went to work for Accuray.

David

Scherch ("Sherch") had been employed by NOMOS for almost 15 years
and, at
the

time of the Acquisition, was the Technical Leader for

Technology

strategic

Innovation

planning

("Spellman")

went

for
to

Group

product

work

as

where

he

was

responsible

development.

a

software

beginning in March 2001; his duties in

David

engineer

for

Spellman

with

NOMOS

uded product development

and interacting with existing and potential customers at trade
shows.
2001

Marcus Bittman {"Bittman"} was employed by NOMOS in March

as

an

associate

software

engineer.

At

the

time

of

the

Acquisition, Bittman was the Marketing Manager and responsible for
interacting with the company's existing and potential customers.
In
continual

their

positions,

access

to

Bittman,

confidential

Scherch,
and

and

Spellman

proprietary

business

information and trade secrets belonging to NOMOS and/or BMI.3
condition of their employment,

had

As a

1 three had signed agreements with

For the sake of brevity, we will use the phrase "8MI Confidential
Information" to mean "all confidential and proprietary business
information and trade secrets belonging to NOMOS and/or 8MI."

3

6

NOMOS which contained non-compete and non-disclosure provisions;
Scherch and Spellman had signed similar agreements with BMI after
the Acquisition.

Between October 2007 and June 2008, they all left

BMI and went to work for Accuray.

Although a provision in each of

their employment agreements required them to inform BMI of their
subsequent employment, none of them did so.
B.

Procedural History; Claims and Counterclaims
Hill filed a single-count suit in this Court on December

14, 2007,

leging breach of contract arising from BMI's refusal to

pay the severance benefits to which he believed he was entitled.

(See Hill v. Best Medical Int'l, CA No. 07-1709, "the Hill Case.")
On

February

15,

2008,

BMI

filed

its

answer

defenses, along with four counterclaims.
According to BMI,
"copied,

removed

business

information

and

affirmative

(Doc. No.3.)

before Hill announced his resignation, he

and/or
and

retained
trade

confidential
secrets

and

proprietary

belonging

to

[BMI],

including but not limited to computer files that included source
code and other items related to Best Medical's products."
No.3,

<JI

74.)

In

Counterclaim

I,

BMI

alleged

that

Hill

(Doc.
had

breached his employment agreement by retaining BMI Confidential
Information and by using and/or intending to use it for the benefit
of Accuray.

Counterclaim II alleged that Hill had breached his

fiduciary duty of loyalty to BMI by failing to keep the information
confidential.

Counterclaim III alleged that Hill had violated the
7

Pennsylvania Uniform Trade Secrets Act, 12 Pa. C.S.
("PUTSA")

and in Counterclaim IV,

§

5301 et seq.

that his acts of copying and

retaining BMI Confidential Information constituted conversion.
BMI and Hill proceeded according to a case management order
under which fact discovery was to be completed by September 30,
2008, with a post-discovery conference set for October 7, 2008.
October

6,

2008,

BMI

filed

new

complaint

against

Bittman,

(Best Medical Int'l v. Spellman et al., CA

Scherch, and Spellman.
08-1404,

a

On

"the Spellman Case.")

In Counts I and II,

BMI claimed

that Scherch had breached the confidentiality, non-compete and next
employment notification provisions
with BMI and NOMOS,

his employment agreements

respectively.

Identical claims were raised

against Spellman in Counts III and IV, plus, in Count V, breach of
the confidentiality clause of his 2008 BMI consulting agreement.
Count VI alleged breaches of B
with NOMOS.

tman's 2001 employment contract

Finally, Count VII alleged violation of the PUTSA by

all three defendants.
A case management order was entered in the Spellman Case,
allowing

limited

representations
settlement

discovery
of

prior

the

part

negotiations,

the

s

to

that

Court

Based

mediation.
they

were

temporarily

on

engaging
suspended

the
in
all

discovery deadlines on December 3, 2008, and again on February 25,
2009.
with

Mediation eventually took place on June 19, 2009,
the

Hill

Case;

it

was

unsuccessful.
8

A

joint

jointly
status

conference was set for July 14, but when BMI changed counsel at the
eleventh

hour

on

July

13,

the

conference

was

postponed

until

September 10, 2009.
On September 2,

2009,

BMI filed another new complaint,

this

time against Hill, Scherch, Bittman, Spellman (collectively, "the
Individual Defendants")
et al.,

------~~----~--------

and Accuray.
CA No.

addition to the general
BMI

alleged

that

09-1194,

"the Accuray Case.")

In

legations in the Hill and Spellman Cases,

immediately a

ownership in NOMOS,

(See Best Medical Int'l v.

er

learning

of

the

change

of

the Chief Operating Officer of Accuray had

approached Hill to induce him to come to work for one of BMI's most
significant competitors.
Spellman to join Accuray.

Hill then recruited Bittman, Scherch and
BMI further alleged that when Accuray

recruited Hill, it was aware that he had access to BMI Confidential
Information and encouraged him to download "tens of thousands" of
computer

les.

In this complaint, BMI stated six claims:

Count I

tortious interference with the employment contracts
between BMI and Bittman, Scherch and Spellman by
Accuray, Hill, and John Does 1 through 5;4

Count II

civil conspiracy on the part of all Defendants;

Count III violation of the PUTSA by AccuraYi

4
John Does 1 through 5, who were apparently, but not clearly, employees
of Accuray, are referred to in the complaint filed in the Accuray Case at
~~ 8 12.
There are no factual allegations against them specifically, as
compared to the other defendants, in Counts I, II and IV.
They have
never, to the best of the Court's ability to discern, been mentioned
again in any pleading filed in these three cases.

9

Count IV aiding and abetting breach of
duciary obligations
by Accuray and John Does 1 through 5 with regard to
the duties of the Individual Defendants;
Count V

conversion by AccuraYi and

Count VI unfair competition by Accuray.
The

Hill

and

Spellman

Cases

were

again

pleadings in the Accuray Case were closed.
February 18,

2010,

March 16, 2010.

until

the

The stay was lifted on

and a case management con

At that time,

stayed

rence was held on

a joint case management order was

entered, directing the cases to be consolidated for all pre-trial
proceedings.

The cases were once more referred to mediation,

which was again unsuccessful.

Numerous disputes

5

regarding the

trade secret claims slowed the discovery process, as did the fact
that less than three weeks before the post-discovery conference was
to be held, BMI again changed counsel.
The
judgment:

parties

eventually

Docket No.

filed

three

117 by Accuray,

motions

for

summary

seeking dismissal of all

Counts in the Accuray Case insofar as the allegations pertained to
it; Docket No. 137, a motion by Hill seeking judgment in his favor

On June 3, 2010, the date initially set for the joint mediation, BMI
filed a motion to amend its complaint in the Accuray Case, seeking to add
a claim for patent infringement.
(Doc. No. 51.)
Accuray, Spellman,
Bittman, and Scherch opposed the motion and the Court denied the motion
on June 24, 2010. (Doc. No. 61.)
On August 6, 2010, BMI filed suit
against Accuray and the four Individual Defendants at CA No. 10-1043. On
March 9, 2011, Judge Terrance F. McVerry of this court dismissed all
claims against the individuals.
(CA No. 10-1043, Doc. No. 46.)
The
patent infringement claims against Accuray have not been resolved as of
the date of this Memorandum Opinion.
5

10

on his claim for breach of the severance agreement and on all four
Counterclaims by BMI in the Hill Case, along with judgment in his
favor on Counts I and II of the Accuray Case; and Docket No. 139, a
motion by Bittman, Scherch, and Spellman seeking judgment in their
favor as to all Counts in the Spellman Case and Count II of the
Accuray Case.

The parties having fully briefed their positions,

the three motions are now ripe for decision.
II.

JURISDICTION AND VENUE

BMI
business

is a Virginia corporation with its principal place of
in

Springfield,

Virginia.

Accuray

is

corporation with its principal place of business
California.

California

in Sunnyvale,

Hill was a resident of Pennsylvania at the time he

filed his complaint and is currently a
Bi ttman,

a

Scherch,

and Spellman were

resident of California;

residents

of

Pennsylvania.

This Court therefore has jurisdiction over each of the three cases
based on complete diversity of the parties thereto and, according
to the various complaints, an amount in controversy in excess of
the statutory minimum.

See 28

U.S.C.

§

1332 (a) - (c).

Venue is

appropriate in this Court under 28 U.S.C. § 1391(a) inasmuch as a
substantial part of the events giving rise to the claims occurred
in the Western District of Pennsylvania where Accuray maintains an
of

ceo

III. STANDARD FOR SUMMARY JUDGMENT

A court may grant summary judgment if the party so moving can
11

show "there is no genuine issue as to any material fact and that
the moving party is entitled to
Fed.R.Civ.P. 56(a); S
560,

568

(W.O.

Pa.

judgment as a matter of law."

Ion v. Ohio Cas. Ins. Co.,

2005).

verdict for the non-movant,

If a

396 F. Supp.2d

reasonable jury could return a

the dispute is genuine and if, under

substantive law, the dispute would affect the outcome of the suit,
it is material.

A factual dispute between the parties that is both

genuine and material will defeat a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 248

(1986).

In considering a motion for summary judgment, the court must
view all evidence in the light most favorable to the non-movant,
accept the non-movant's version of the facts as true, and draw all
reasonable
Sollon,

inferences

id.,

and

resolve

any

ci ting Matsushita Elec.

conflicts

Indus.

Co.

in

its

favor.

Ltd.

v.

Zenith

Radio Corp., 475 U.S. 574, 587 (1986), and Big Apple BMW,

Inc. v.

BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

In

short, the movant must show that if the pleadings, depositions and
other evidentiary material were admissible at

trial,

the other

party could not carry its burden of proof based on that evidence
and

a

reasonable

jury would

disputes in the movant's favor.
317, 318

thus

decide

Celotex

all

genuine

material

. v. Catrett

477 U.S.

(1986).

Once the movant has demonstrated that there are no genuine
issues of material fact, the burden shifts to the non-moving party
12

to "make a showing sufficient to establish the existence of every
element

essential

to

his

case,

based

depositions and admissions on file."
Sollon,

id.

Fed.R.Civ.P.

56(c).

on

the

affidavits

Celotex,

The

sum

or

by

id.
the

of

at

322-323;

affirmative

evidence to be presented by the non-moving party must be such that
a reasonable jury could find in its favor,

and it cannot simply

reiterate unsupported assertions, conclusory allegations, or mere
suspicious

bel

fs

to

show

the

existence

of

a

genuine

issue.

Liberty Lobby, id., at 250-252; Podobnik v. U.S. Postal Serv., 409
F.3d 584,

IV.

594

ANALYSIS:
Because

(3d Cir. 2005).

THE ACCURAY CASE
the

Accuray

Case

encompasses

claims

which

are

duplicated in the Hill and Spellman Cases, including not only the
causes of action but also the allegations on which the claims are
based, we begin with Accuray's motion for summary judgment on all
counts.

The logical starting point is Count III, the claim that

Accuray

violated

because,

as will be discussed below,

the

other causes of action.

Pennsylvania

Uniform

Trade

Secrets

Act,

that Act pre-empts several

However, in light of certain arguments BMI

has raised in opposition to the motions for summary judgment, we
are

compelled

to

begin

with

a

summary

of

the

difficulties

associated with defining BMI's trade secrets.
In the Accuray complaint,
Defendants

had misappropriated

BMI

alleged that

"thousands
13

of

the

Individual

files."

(Accuray

Case,

Doc.

references

No.1,
to

CJ[

48.}

With the exception of some specific

information Hill

shared with Accuray,

the

was

alleged

descriptions

of

to have

what

copied and

each

Individual

Defendant was alleged to have misappropriated were rather general.
In a PUTSA case,
under

Pennsylvania common law,

secrets

have

obligation

been
to

particularity."
U.S.

as in prior trade secret litigation considered
6

a

plaintiff

misappropriated

identify

those

by

the

secrets

claiming its
defendant
"with

has

trade
the

reasonable

See Gentex Corp. v. Sutter, CA No. 07-1269, 2009

Dist. LEXIS 13753, *4

(M.D.

Pa.

Feb. 23,

2009),

recognizing

the plaintiff's obligation to do so and citing cases

from the

Southern District of New York? and Northern District of Georgia
addressing this question.

As one court has pointed out,

every

court which has opined on the issue has ruled that such specificity
is required in order for the defendant to be adequately apprised of

The parties assume, and the Court agrees, that Pennsylvania law applies
in these cases. A court sitting in diversity applies the substantive law
of the state in which it sits.
See Erie R.R. Co. v. Tompkins, 304 U.S.
64 (1938); Edwards v. HOVENSA, LLC, 497 F.3d 355, 361 (3d Cir. 2007).
When applying Pennsylvania substantive law, if there is no controlling
decision by the Pennsylvania Supreme Court, this Court will consider
decisions of intermediate appellate courts,
which,
although not
conclusi vel are indicative of how the Supreme Court might decide the
issue.
McGowan v. Univ. of Scranton, 759 F.2d 287, 291 (3d Cir. 1985)
(such intermediate court decisions may constitute "presumptive evidence"
of Pennsylvania law.)
6

The New York case cited in Gentex addressed exactly the issue herein ­
the plaintiff's inability or reluctance to identify with specificity the
trade secrets at issue, a situation the court referred to as the
plaintiff's "Dance of the Seven Vei Is approach to the trade secret
claim." See sit-up Ltd., 2008 U.S. Dist. LEXIS 12017, at *25.
14

what it is alleged to have misappropriated.

See sit-up Ltd. v.

lAC/Interactive Corp., CA No. 05-9292, 2008 U.S. Dist. LEXIS 12017,
*33

(S.D. N.Y.

Feb. 20, 2008), citing cases from the Seventh and

Ninth Circuit Courts of Appeal.

This specificity is also necessary

so the court "can divine the line between secret and non-secret
information,

and so that a jury can render a verdict based on a

discriminating

analysis

misappropriation."

of

the

evidence

of

disclosure

and

sit-up Ltd., id. at *34.

On March 25, 2008, the parties in the Hill Case entered into a
Stipulated

Order

enjoining

Hill

from

using

any

of

BMI's

"confidential and proprietary information and trade secrets" in any
way.S

Hill also agreed to return all hard copies of BMI documents

and to provide to a third-party computer forensics examiner all
computers and electronic data storage media in his possession or
control which might contain BMI Confidential Information.
some agreed-upon privilege restrictions in place,

With

the forensics

8 The phrase "confidential and proprietary information and trade secrets"
was defined in the Stipulated Order of March 25, 2008, as "(i)
applications, source code and data files regarding products of [BMI and
NOMOS], (ii) [BMI/NOMOS] product development documents and information
and (iii) [BMI/NOMOS] marketing research materials.
It shall also
encompass any other information which is protected by Best Medical and/or
NOMOS as confidential information, including, but not limited to,
information concerning [BMI/NOMOS] accounts, sales, sales volume, sales
methods,
sales proposals,
internal financial data,
customers or
prospective customers, prospect lists,
company manuals,
formulae,
products, processes, flow charts, plans, drawings, designs, technical
specifications, methods, compositions, ideas, improvements, inventions,
research, computer programs, system documentation, software products,
patented products, copyrighted information, know-how and operating
methods and other trade secret or proprietary information belonging to
[BMI/NOMOS] or relating to [BMI/NOMOS's] affairs that are not public

15

examiner would search the computerized data to identify BMI or
NOMOS information and any correspondence between Hill and Accuray
dating from July 1, 2007, to October 4, 2007, the date on which he
resigned from BMI.

After a bit-by-bit image of

had been made and placed in a
Hill's attorneys,

ll's computers

locked box under the control of

he would permit the examiner to overwrite all

information belonging to BMI on any computer or storage media he
retained.

(Hill Case,

Doc.

No.8.)

When the

Spellman Case was

filed, those three Defendants agreed to a Stipulated Order similar
to

that

between

According
17,000

to

Hill

BMI,

and BMI.

Hill

had

(Spellman Case,

downloaded

or

Doc.

copied

No.

15.)

approximately

les and the three other former employees had retained

"thousands"

of

files

containing

BMI

Confidential

Information.

(Doc. No. 47 at 6 and 8.)
As noted above, discovery in the Hill and Spellman Cases was
suspended several times based on the representations of the parties
that

they

Moreover,

were

engaged

the fact

in

serious

settlement

negotiations.

that BMI changed counsel twice significantly

slowed down the progress of discovery in the Hill and Spellman
Cases as did the

ling of the Accuray Case in September 2009 and a

subsequent motion to dismiss.

At

conference

and

on March

15,

2010,

the Accuray Case Rule
at

a

joint

26 (f)

case management

conference the following day, the parties agreed that in its Rule

information."

(Doc. No. 8,':J[ 3.)

16

26(a)

initial disclosures,

BMI would identify, with specificity,

the trade secrets and confidential or proprietary information at
issue

in

respond

the
to

consolidated

discovery

litigation;

related

confidential information.

to

only

its

then

own

would Accuray

trade

secrets

and

(See Accuray Case, Doc. No. 28, at 5.)

Although BMI provided its initial disclosures, the description
of the trade secrets consisted of little more than a restatement of
the allegations in the three cases.

(See Doc. No. 41, Exh. A, at

6. )

compel,

A series

of

cross motions

protective orders, etc.,

to

for

sanctions,

for

ensued, with the Court issuing repeated

orders for BMI to identify its confidential proprietary information
and trade secrets with the required specifici ty 9 and BMI responding
that

it was unable to

fully comply because discovery was still

ongoing or providing responses that were, in Accuray's view, simply
repetitions of previous inadequate answers.
On June 24, 2010, in response to a motion by Accuray to compel
discovery,

the

reasonable

particularity

information

and

misappropriated.

Court

trade

once
the

again

ordered

BMI

to

state

confidential/proprietary

secrets

Accuray

was

alleged

with

business
to

have

The Court simultaneously granted Accuray's motion

for a protective order,

stating that pending compliance with the

previous sentence, BMI was "precluded from obtaining any discovery

See Court orders issued on November 4, 2008 (Spellman Case), and on
June 16, 2010, June 24, 2010, September 28, 2010, January 18, 2011, and
January 20, 2011 (Hill Case.)

9

17

relating to Accuray's trade secrets and confidential information."
(Doc. No.

60 at 2.)

This decision was consistent with those of

other courts which have required the plainti

first to identify

the trade secrets in question before it is permitted discovery into
the defendant's confidential information.

This two-phase process

allows discovery to focus on those subjects where

misappropriation

can be most easily shown through copying or other forms of improper
use.

See, e.g., DeRubeis v. Witten Techs., Inc., CA No. 06-807,

2007 U.S. Dist. LEXIS 30047 (N.D. Ga. Apr. 23, 2007)
Some

ve months

later,

on November 15,

2010,

.10

BMI

finally

produced a binder with eight tabs that included various computer
files obtained from the Individual Defendants.

Despi te a Court

Order of September 28, 2010, which had required BMI to identi

the

specific portions of those files which constituted the BMI trade
secrets,

only materials in five of the eight tabs of the binder

10
The court in DeRubeis described this two phase process as "reasonable"
because (1) Witten,
party seeking discovery in the case, had a good
awareness of the trade secrets allegedly misappropriated and would thus
not be required to identi
"thousands" of alleged secrets; (2) since the
purported trade secrets would have to be described only with "reasonable
particularity," no 'Catch-22' dilemma would arise, i.e., a situation in
which Witten would be compelled to describe each trade secret very
specifically because it did not know exactly which trade secrets might
have been taken, only to end up missing the trade secret because it had
been described in too much detail;
(3) it would prevent needless
disclosure of DeRubeis's own confidential information in the event Witten
was engaged in a fishing expedition or retaliating against the plaintiffs
for filing suit for breach of an employment contract; (4) it would
prevent unnecessary disclosure of the plaintiffs' trade secrets which
were not at issue;
and
(5)
identifying the trade secrets with
particularity would allow the plaintiffs to prepare their defense to the
misappropriation charges.
id. at *15-17.

18

were so identified.
Meanwhile,

the deposition of BMI's corporate representative

(the "30(b) (6) representative") was set for December 20, 2010, at
which the representative was to testify regarding the trade secrets
identified in the binder.
the Court

On January 13, 2011, Accuray provided to

compelling evidence

that

the

30 (b) (6)

representative

provided by BMI was unable to testify about the trade secrets in
any detail.

Counsel for BMI represented to the Court and Accuray

for the first time that another BMI representative had been "ready,
willing and ab
effect,

"to testify more precisely on this matter and, in

asked for a second bite at the apple.

Accuray's objections, granted couns
to be paid by BMI,
deposition.

The Court,

over

's request, with all expenses

if Accuray chose to proceed with the second

The Court also ordered, as it had in the past, that

any discovery by BMI would be stayed until it complied with the
rest of the Court's order.

Furthermore, because BMI had previously

failed to identify any trade secret material in three of the eight
sections of the binder, the claims of trade secrets were limited to
the materials at tabs 2,

3,

4,

5, and 9 of the binder.

(Doc. No.

95, as amended at Doc. No. 97.)
BMI identified Dr. George Cernica, a medical physicist from a
not-for-profit foundation associated with BMI, as its replacement
30(b) (6)

representative.

According to BMI,

Dr. Cernica would be

"able to testify with particularity" regarding the alleged trade
19

secrets

identified at

the

five

tabs

in the binder produced on

November 15, 2010, including
an estimated cost of development of the misappropriated
trade secrets, the specific nature and functionality of
the identified trade secrets which makes them "Trade
Secrets,U and what makes the claimed trade secrets unique
and not commonly known in the industry or to the general
public.
Dr. Cernica will also be able to testify about
the security measures taken by Best NOMOS to protect the
alleged trade secrets.
(Doc. No. 99 at 2-3.)
Dr.
during

Cernica was deposed on February 25,

his

deposition

that

potential trade secrets.

only

two

items

2011,
in

the

and conceded
binder

were

His identification of approximately 100

lines of computer code, discussed in more detail below, satisfied
the requirement that BMI "specify with particularityU its trade
secrets.

Therefore, any time after February 25, 2011, BMI was free

to serve interrogator

s,

requests for production and any other

discovery pertaining to trade secrets on AccuraYi there is nothing
in the record to indicate that BMI pursued such discovery.
At a status conference held on March 8, 2011, counsel for BMI
stated that he needed two additional weeks to address the trade
secret issues presented in Dr. Cernica's deposition and there was a
possibility these claims would be withdrawn.

Counsel for Accuray

indicated it intended to file a motion for summary judgment on the
trade secrets issue,
learn BMI's intention.

but was willing to wait until March 25 to
The Court entered an order the following

day reflecting these two statements and setting a briefing schedule
20

in the event BMI did not withdraw its trade secrets claims. 11

(Doc.

No.

time

106.)

At

no

time

during

that

con

rence

or

at

any

thereafter did BMI object that it had not completed discovery.
However, when responding to the moving parties' statements of
undisputed facts and in its br

fs opposing summary judgment, BMI

frequently indicated it was unable to admit or deny particular
factual

statements

or

to

provide

evidence

in

support

of

its

positions because it had been prohibited from discovery pertaining

(See, e.g., Doc. No. 129,

to Accuray source code.

~~

10-13; Doc.

No. 128 at 12, "Admittedly, Dr. Cernica's testimony may have been
more detailed had he been able to view the accrual

[sic] Accuray

source code. However, since [BMI] was prohibit [ed] from discovery
as

relates to the Accuray source code, Dr. Cernica's opinion is

the best evidence available to Plaintiff.")
computer forensics
confidential

and

expert,

But, through its own

BMI had access to all the so-called

proprietary business

information

and/or

trade

secrets taken from the Individual Defendants' computers not later
than December 2008.
secret

until

However, BMI failed to identify a single trade

November

15,

pertaining to Accuray's

2010,

even though

it

knew discovery

computer codes and trade secret

issues

11 BMI has asserted that it was "directed" to dismiss its trade secret
claims. (Doc. No. 128 at 15.) Both the Order of March 8, 2011 (Doc. No.
106) and the contemporaneous notes of the law clerk who attended the
status conference reflect that EMI was directed to advise the other
parties of its intentions regarding the claims, not to withdraw the
claims.

21

hinged

on

identifying

its

own

purported

trade

secrets

with

"reasonable particularity.u
We further note that at any time prior to submission of its
briefs in opposition to the motions for summary judgment, BMI could
have

sought

the

protection

of

Fed.R.Civ.P.

56(d).

That

rule

directly addresses BMI's claim that it was not permitted adequate
discovery.

"A party opposing summary judgment on the basis that

additional discovery is warranted must
declaration that,

'show[

for specified reasons,

] by affidavit or

it cannot present facts

essential to justify its opposition.,n

Abulkhair v.

Citibank &

Assocs., No. 11-2059, 2011 U.S. App. LEXIS 13235, *10 (3d Cir. June
28, 2011).

If the party opposing summary judgment under Rule 56(d)

also indicates what material

cts it hopes to acquire through

additional discovery and why that information has not previously
been

made

available,

considering
addi tional

the

the

motion

discovery;

court

or
(3)

deny
or

BMI had from at least March 9,

has
it;

issue
2011,

three
(2)

options:
allow

another

(1)

time

defer

to

appropriate

take

order.

when the original br

fing

schedule for summary judgment was set, until June 21, 2011, when
its opposition to the Accuray motion was filed, to seek additional
discovery under Rule 56(d).
identifying
obtained,

the

critical

At no time did BMI file an affidavit

discovery,

and how it would preclude

why

it

summary

was

not

previously

judgment.

Such a

failure is "in all but the most exceptional cases, . . . fatal to a
22

claim of insufficient discovery."
F.3d 197,

207

consequences

(3d Cir.

of

any

2002),

Bradley v.

United States, 299

citing Fed.R.Civ.P.

inability to

complete

26(f).

discovery

The

and the

resultant inability to provide evidence of record in support of its
arguments -- must therefore be laid directly at BMI's door.12
A.

Count III - Violation of the PUTSA by Accuray

1.
Case,

BMI's claims:

In the Complaint filed in the Accuray

BMI alleged numerous times that the Individual Defendants

"wrongfully copied and retained confidential, proprietary and trade
secret information belonging to" BMI and that they shared this
information with Accuray.

(Accuray Case, Complaint,

~~

45-46.)

Hill was alleged to have had access to "(i) source code and
data

files

regarding

Best Medical/NOMOS

products,

(ii)

product

development documents and information, and (iii) marketing research
materials"

(Accuray Case,

Complaint,

~

29),

all

of which

fell

within the scope of "Confidential Information" as that term was
defined

in

the

Hill-NOMOS

Agreement. 13

In

particular,

he

was

The Court's analysis of the arguments herein has been further
complicated by the fact that BMI frequently denies an opposing party's
statement of material facts, but fails to cite the evidence of record on
which that denial is based.
Such an omission is contrary to Local Rule
of Court 56 (C) (1) (b) which requires a party denying a statement of fact
to "set forth the basis for the denial . . with appropriate reference to
the record." Since the Court is required to view all evidence in favor of
the non-moving party when considering a motion for summary judgment, we
have carefully considered all evidence submitted by the parties, even
when BMI has failed to point to evidence supporting its positions.
12

13 "Confidential Information" was defined as "Any information which is
protected by the Company [i.e., NOMOS] as confidential information and
which may include, in whole or part, information concerning the Company's

23

alleged to have copied, retained, and shared with Accuray:
(i) source code, libraries and data fi s related to
[BMI] products, including, without limitation, Corvus,
BAT, nomosSTAT, and Peregrine; (ii) files containing
[BMI's]
new product development efforts including,
wi thout limitation, the development of the Integrated
Treatment System, Phoenix Adaptive Therapy solutions, and
Add-on Cone Beam CT systems; and (iii) files containing
sales information and marketing projections for existing
[BMI] products.
(Accuray Case, Complaint,
In the
Sherch

was

~

53.)

confidentiality agreement
prohibited

from

retaining,

Company's "Proprietary Information."14
access

to

"(i)

Medical/NOMOS

source

products

code
and

between

and

sharing

or

using

the

He was alleged to have had

data

services,

Scherch and BMI,

files

(ii)

regarding

product

Best

development

accounts, sales, sales volume, sales methods, sales proposals, customers
or prospective customers, prospect lists, Company manuals, formulae,
products,
processes,
methods,
compositions,
ideas,
improvements,
inventions, research, computer programs, system documentation, software
products I patented products, copyrighted information, know-how and
operating methods and other trade secret or proprietary information
belonging to the Company or relating to the Company's affairs that is not
public information."
(Accuray Case, Complaint, 'f[ 24.)
14 "Proprietary Information" was defined as "any and all of the following:
design strategy, ideas, discoveries, inventions, patents, formulas,
specifications, patterns, techniques l computations, programs, devices,
processes, methods, products, equipment, improvements, trade secrets,
computer programming in connection with any of the foregoing, financial
information, all information related to customers and prospective
customers, and other similar matter and information that [BMI] owns and
will own and uses and will use, and/or that is useful in {BMI's business.
'Proprietary Information' shall not include such matter and information
to the extent that it is publicly known or is generally utilized by other
persons or entities engaged in the same business or businesses as [BMI.}
Any
failure
to
mark
or
designate
Proprietary
Information
as
'confidential' or 'secret' shall not affect its status as proprietary
information subject to the terms of this Agreement."
(Accuray Case,
Complaint, 'f[ 73.)

24

documents and information,

(iii)

sales information and marketing

projections, and (iv) product planning strategies and initiatives."
(Accuray Case, Complaint,

76.)

~

In the agreement between Spellman and BMI, the definition of
"Proprietary
agreement

Information"

(Accuray Case,

was

identical

Complaint,

~

to

92)

that

in

and he was

Scherch's
leged to

have had access to "(i) source code and data files regarding Best
Medical/NOMOS
documents

products

and

services,

information,

marketing projections"
In

and

id.,

and
~

(i i)

(iii)

product

sales

development

affiliation

and

99.)

ttman's contract with NOMOS, "Con

dential Information"

was defined somewhat differently from the definition used in the
Hill-NOMOS Agreement. IS
"(i)

source

products

and

information,

code

and

services,

Bittman was alleged to have had access to
data
(ii)

files

regarding

product

Best

development

Medical

NOMOS

documents

and

(iii) sales information and marketing projections, and

(iv) marketing strategies." (Accuray Case, Complaint,

~

113.)

15
Confidential Information in the Bittman-NOMOS Agreement was defined as
"'Inventions' .
., trade secrets, technical information, know-how,
research and development activities of the Company, sales methods, sales
plans, sales results, product and marketing plans, customer and supplier
names and information, names and information regarding prospective
customers and information disclosed to the Company or to me by third
parties of a proprietary or confidential nature or under an obligation of
confidence.
Confidential Information is contained in various media,
including without limitation, patent applications, computer programs in
object and/or source code, flow charts and other program documentation,
manuals, plans, drawings, designs, technical specifications, laboratory
notebooks, supplier and customer lists, internal financial data and other
documents and records of the Company." (Accuray Case, Complaint, <J[ 110.)

25

BMI
con

specifically

alleged

"the

that

afore

referenced

dential information and proprietary information constitutes

legally protectable

trade

secrets

~

(Accuray Case, Complaint,

as

defined

131; see also

~

by

[the

PUTSA.]"

139, stating that "the

misappropriation and wrongful use of Best Medical's confidential
proprietary trade secret information constitutes a violation of
[PUTSA] . ")

Finally,

BMI

leged that "Accuray has accepted and

utilized in its business the
(Id.,

~

142.)

None

of

the

Individual Defendants expli

2.
its motion
arguments.

'trade secrets'
BMI

or

NOMOS

of the Plaintiff."
contracts

with

the

ly defined the term "trade secrets."

Accuray's arguments: 16

In the brief in support of

r summary judgment on Count III, Accuray offers two
First,

the Alleged Trade Secrets

(as defined below)

fail to satisfy the definition of trade secrets under the PUTSA
because (a) BMI has failed to present evidence establishing their
independent economic value;
protect the secrecy of

(b) BMI took no reasonable efforts to

s software code; and (c) the Alleged Trade

Secrets are either a well-known programming technique or could be
readily reproduced by any competent programmer.
is devoid of any facts suggesting

Second, the record

sappropriation by Accuray and

the forensic analysis by Accuray's expert conclusively establishes

Although BMI stated several allegations against the Individual
Defendants for violation of the PUTSA in this section of its Complaint,
those allegations are duplicated in the Hill and Spellman Cases and will
be discussed in Sections V.C and VI.B below.
16

26

that Accuray did not misappropriate the Alleged Trade Secrets.

3.

Relevant law:

Under the Pennsylvania Uniform Trade

Secrets Act, a trade secret is defined as:
Information, including a formula, drawing, pattern,
compilation including a customer list, program, device,
method, technique or process that:
(1) Derives independent economic value,
actual or
potential, from not being generally known to, and
not being readily ascertainable by proper means by,
other persons who can obtain economic value from
its disclosure or use.
(2)

Is the subject of efforts that are reasonable under
the circumstances to maintain its secrecy.

12 Pa. C.S. § 5302.
This is essentially the same definition as that used prior to
April

2004

when

the

PUTSA became effective.

Youtie v.

Macy' s

Retail Holding, Inc., 626 F. Supp.2d 511, 529 n.10 (E.D. Pa. 2009)
("The

PUTSA

displaced

Pennsylvania's

common

law

tort

for

misappropriation of trade secrets, but there is no indication that
the

statute

ef

cted a

substantive

shi

in

the defin

ion of

'trade secret.'") Determining whether the information in question
quali

s as a trade secret must be made on a case-by-case basis.

See 0.0. Anderson, Inc. v. Cricks, 815 A.2d 1063, 1071 (Pa. Super.
Ct. 2003).

This is generally a question of fact Ie

for the jury.

Bro-Tech Corp. v. Thermax, Inc., 651 F. Supp. 2d 378, 410 (E.D. Pa.
2009).

However, as another court has noted, such "factual issues

are subject to summary judgment whenever the law as applied to
uncontroverted facts shows that the movant is entitled to summary
27

judgment."

Youtie,

Technology,

Inc.,

Dist. LEXIS 2517,
the defendants'

v.

653

F.

Supp.2d

RadioShack Corp.,

*16

(E.D.

Pa.

at

623,

CA No.

quoting

01-4719,

Camelot

2003 U.S.

Feb. 14, 2003), and finding that

data compilation fulfilled the requirements of a

trade secret under the PUTSA.
The Pennsylvania Superior Court has identified a number of
factors to be considered when determining if particular information
constitutes a trade secret:
(1) the extent to which the information
outside of the company's business;
(2 )

is

known

the extent to which the information is known by
employees and others involved in the company's
business;

(3) the extent of the measures taken by the company to
guard the secrecy of the information;
(4) the value of the information to the company and its
competitors;
(5) the amount of effort or money the company spent in
developing the information; and
(6) the ease or difficulty with which the information
could be acquired or duplicated legitimately by
others.
Crum v. Bridgestone/Firestone N. Am. Tire, LLC,
(Pa.

Super.

ct.

2006);

see also SI

Handling

907 A.2d 578, 585
Systems,

Inc.

v.

Heisley, 753 F.2d 1244, 1256 (3d Cir. 1985).
Under the
secret,

the

PUTSA,

plaintiff

to establish misappropriation of a trade
must

show

that

the

defendant

used

or

disclosed information that it knew or had reason to know was a
28

trade secret and that the defendant acquired such information by
12 Pa. C.S. § 5302;17 see also Moore v. Kulicke &

improper means.

Soffa Indust., Inc., 318 F.3d 561, 566 (3d Cir. 2003), stating that
the elements of a trade secrets misappropriation claim are "(I) the
existence of a trade secret;

(2) communication of the trade secret

pursuant

re

secret

to

in

a

confidential

violation

plaintiff."

of

that

ionship;
confidence;

(3)

use

of the

and

(4)

harm

trade
to

the

Failure to establish anyone of the elements defeats

the claim.

Block v. Blakely, CA No. 02-8053, 2004 U.S. Dist. LEXIS

16920,

(E.D.

*7

Pa.

Aug.

25,

2004)

(granting

summary

judgment

without reaching the defendants' arguments that certain documents
did not contain legally protectable trade secrets or that a third
party used or disclosed information therein because the plaintiff
failed to show it had kept the documents confidential.)
4.

Discussion and con

usion:

We begin our analysis

with the

rst element of a trade secrets misappropriation claim as

stated

Moore,

in

i. e.,

the

existence

of

a

trade

secret,

and

In full, "misappropriation" is defined as: "(I) acquisition of a trade
secret of another by a person who knows or has reason to know that the
trade secret was acquired by improper means; or (2) disclosure or use of
a trade secret of another without express or implied consent by a person
who: (i) used improper means to acquire knowledge of the trade secret;
(ii) at the time of disclosure or use, knew or had reason to know that
his knowledge of the trade secret was: (A) derived from or through a
person who had utilized improper means to acquire it; (E) acquired under
circumstances giving rise to a duty to maintain its secrecy or limit its
use; or (C) derived from or through a person who owed a duty to the
person seeking relief to maintain its secrecy or limit its use; or (iii)
before a material change of his position, knew or had reason to know that
it was a trade secret and that knowledge of it had been acquired by
accident or mistake." 12 Pa. C.S. § 5302.
17

29

immediately hit a major stumbling block. 18

As discussed above, BMI

was unable to identify the information it contended were trade
secrets

until

November

15,

2010,

when

containing eight source code excerpts.
BMI's

second

30 (b) (6)

representative,

it

provided

a

binder

Following the deposition of
Dr.

Cernica,

the parties

stipulated on May 19, 2011, that "the sole remaining alleged trade
secrets at issue in this lawsuit as to Defendant AccurayH were (1)
a highlighted portion of source code in Binder Tab 2 at pages 3-4,
referred to by the parties as "DoseLookUpH and
portion of code

in Binder Tab

"GetDoseSlice."

(Doc. No.

3 at

pages

(2) a highlighted

5-6,

referred to as

122 and Exhs. A and B thereto.)

The

parties refer to the two portions of source code collectively as
the "Alleged Trade Secrets;

II

they consist

approximately 100

lines of code in total.
BMI argues summary judgment cannot be granted to Accuray on
the

PUTSA claim because Dr.

issues of material

19

Cernica's testimony raises genuine

(Doc. No. 128 at 11-13.)

In arriving at

18

Because we ultimately conclude that BMI has failed to establish that
either of the Alleged Trade Secrets is, in fact, a trade secret to be
protected under the PUTSA, we need not address the parties' other
arguments regarding the extent and effectiveness of BMI's efforts to keep
them secret or their alleged economic value.
This is one of the points on which BMI argues Dr. Cernica's testimony
could have been more detailed had he not been prohibited by the Court's
June 24, 2010 order from reviewing Accuray's source code.
(Doc. No. 128
at 12.)
Since Dr. Cernica's testimony focused on explaining why BMI's
DoseLookUp and GetDoseSlice source code constituted trade secrets, not
how Accuray had misappropriated and/or used this code, the Court is
unable to understand how his testimony on this point could have been
improved if he had access to Accuray's source code.
19

30

this

position,

BMI

points

to

the

following

excerpts

from

his

testimony:
•

Dr. Cernica testified that there was an economic
value to the Alleged Trade Secrets. "I don't think
it's a question that hours are placed into many of
these functions. These are complex sub-routines.
Very complex code."
(Doc. No. 130, Exh. D,
Deposition of George Cernica, "Cernica Depo.," at
144. )

•

The trade secret in the DoseLookUp code consisted
of
"how
commonly
known
functions
were
used
together."
(Cernica Depo. at 165.)

•

Dr. Cernica described the source code as "a very
efficient form of the bilinear interpolation" and
testified that such functionality is a trade
secret.
(Id. at 164-165.)

•

The source code has never been released to anyone
or published in any form.
Id. at 174.)

•

Dr. Cernica identi ed the GetDoseSlice code as a
trade secret "for the reasons stated in his
testimony."
(Id. at 179-180.)

To rebut BMI's claim that the two excerpts of source code
actually

satisfy

the

criteria

for

protectable

trade

secrets,

Accuray engaged the services of Randal E. Bryant, a professor and
Dean

of

the

Uni versi ty. 20
Bryant
Secrets.

School

of

Computer

S

ence

at

Carnegie-Mellon

(See Doc. No. 121, Exh. 10, "Bryant Report.")

performed

a

multi-part

analysis

the

Alleged

Dr.
Trade

First, he compared the functionality and structure of the

source code excerpts to determine if they contained features that

See Dr. Bryant's curriculum vitae at paragraphs 3 through 6 of his
report and Exhibit 1 thereto.
(Doc. No. 121, Exh. 10.)

20

31

could be considered trade secrets.

He next performed a forensic

comparison of the BMI/NOMOS CORVUS code to the Accuray MultiPlan
Treatment Planning Software
product

which

allegedly

("MultiPlan software"),

incorporated

the Accuray

the misappropriated

trade

secrets.
In his deposition, Dr. Cernica had testified that it was his
opinion

that

the

interpolation,

use

of

created

interpolation

which

bit
a

made

(Cernica Depo. at 173-175.)

shifting,

very
the

combined

efficient

DoseLookUp

form

code

a

with

bilinear

of

bilinear

trade

secret.

Dr. Bryant concluded that bit shifting

and bilinear interpolation were both well-known practices and that
both techniques, "as well as their combination, would be generally
known to competent programmers and, therefore cannot be considered
trade secrets."

(Bryant Report,

~~

14-32.)

Dr. Cernica had also testified that the GetDoseSlice code was
a

trade

secret

combination.

due

to

its

method

of

implementing

linear

He conceded that the concept of linear combination

was not developed by either NOMOS or BMI,

but stated that the

code's implementation of linear combination was the trade secret.
(Cernica Depo. at 194.)

He was unable to point to any part of the

code that was not "obvious," but stated his opinion, based on his
personal experience, that the excerpts would not be "easy to code."
(Id., 198-199.)

By contrast, Dr. Bryant stated that the code in

question had a very simple form and control structure and that the
32

concept of linear combination was well-known and routinely used by
programmers, as evidenced by such readily available sources as a
Wikipedia

entry.

He

concluded

there

was

no

feature

of

the

GetDoseSlice function "that could not be readily reproduced by any
competent programmer" and therefore it could not be considered a
trade secret.

(Bryant Report,

~~

33-38.)

In the second part of his report, Dr. Bryant compared the two
Alleged Trade Secrets not only to the relevant portions of the
Accuray code which supposedly integrated them,
million

lines

software. 21

of

code

comprising

the

but to over 1.65

entire Accuray MultiPlan

His examination consisted of three analyses.

compared the

coding

styles,

for

example,

coding templates in the Accuray code,
used in the NOMOS code.

the

First he

extensive

use of

a technique which was not

According to Dr. Bryant, such differences

would make it difficult to directly incorporate the NOMOS code into
the Accuray code base,

even if some functions were re-wri tten.

Consequently, any motivation Accuray might have to use the NOMOS
code would be greatly reduced.

(Bryant Report,

~~

43-45.)

Next, Dr. Bryant ran the two computer codes through the "MOSS
program," a tool widely used by computer science instructors to
detect

if

students

have

copied

from

one

another

in

their

Dr. Bryant received three electronic versions of NOMOS code which
included the Alleged Trade Secrets, but concentrated on version 6.3r2 of
the CORVUS code which appeared to be the only one to which Hill would
have had access, given his departure from NOMOS in October 2007.
(Bryant
Report, ':lI 8.)
21

33

programming assignments and in legal applications such as detecting
intellectual

property

infringements.

This

highly

sophisticated

program incorporates functions to detect syntactic changes and a
routine that reports near matches as well as identical fragments in
the

two

files

being

compared.

In

this

analysis,

instead

of

limiting his comparison of Accuray code to just the Alleged Trade
Secrets, Dr. Bryant compared five NOMOS files (over 40,000 lines of
code), including the Alleged Trade Secrets, to the entire Accuray
MultiPlan software, using the most sensitive detection level of the
MOSS program.
code that

The comparison disclosed four fragments of NOMOS

had similar counterparts

in the Accuray code.

significantly, the NOMOS files where the simil

Most

ties existed were

not the files which incorporated the DoseLookUp or the GetDoseSlice
code.

Upon closer analysis, Dr. Bryant concluded that the matching

fragments represented very common code sequences which would be
expected when comparing 1.65 million lines to a different 40,000
lines of code.

Moreover, the fragments were completely unrelated

in substance and,
coincidental.

thus,

in his

(Bryant Report,

opinion,

~~

the matches

were only

46-59.)

Finally, Dr. Bryant conducted a pattern and keyword analysis
of ' the Accuray MultiPlan software using a program he developed for
just that purpose.

This analysis revealed no evidence that the

MultiPlan software used code or features
Secrets.

(Bryant Report,

~<JI

60-67.)

34

from the Alleged Trade

From all his analyses,

Dr.

Bryant concluded
secrets,

(1)

DoseLookUp and GetDoseSlice were not trade

(2) no aspect of the Alleged Trade Secrets had been used

or incorporated into the MultiPlan software, and (3) no aspect of
the 40,000 lines of NOMOS/BMI code (not just the 100 or so lines in
the

Alleged

Trade

Accuray software.

Secrets)

was

used

or

incorporated

into

the

Contrary to Dr. Cernica's testimony, the use of

bit shifting in the Accuray code did not occur in any of the three
implementations of bilinear interpolation; those implementations
had very different forms from what was in the NOMOS code, and there
was no use of the term "linear combination" in the Accuray code.
(Id.,

1)[1)[

68-70.)

The Court has reviewed all the excerpts from Dr.
testimony provided by the parties.

Cernica's

(See Doc. No. 121, Exh. 2; Doc.

No. 130, Exh. D; Doc. No. 134, Exh. 17; and Doc. No. 138, Exh. 13.)
Dr. Cernica was unable to estimate the time necessary to write the
code comprising the Alleged Trade Secrets; he had no documentation
to support his conclusions, but opined it was only "common sense"
that writing such functions required hours rather than minutes.
(Cernica Depo.

at 144.)

He did no analysis to determine if the

Alleged Trade Secrets had any economic value (id. at 144-145), nor
did he determine the cost involved with development of the Alleged
Trade Secrets

id.

at 141.)

He could not testify from his own

knowledge that bilinear interpolation (which he conceded "lots of
people do") with the bit shifts was a trade secret, but relied on
35

the opinion of someone else at BMI, a Mr. Romesberg.

Id. at 165­

166.) Regarding the GetDoseSlice source code, Dr. Cernica indicated

he had "talk[ed] to Mr. Romesberg again" and determined it was a
trade secret.

(Id. at 179-180.)

forensic expert on code

Dr. Cernica conceded he was not a

id. at 108) nor a computer programmer, so

it was "very hard to really tell where the efficiencies are," but
he

relied

on

"general

knowledge."

at

(Id.

168.)

As

for

the

competitive market advantage obtained from the BMI code, he did not
do any analysis on the subject, but opined, "I don't think it's a
question,

though,

advantage./I

that

[the

code

efficiency]

a

competitive

(Id. at 145.)

A comprehensive reading of Dr.
that

is

unlike

Dr.

Bryant,

programming qualified

to

he

Cernica's testimony reveals

was

not

opine on

the

an

expert

question

in

computer

of whether

the

coding which forms the GetDoseSlice or DoseLookUp functions were or
were not well-known computer programming practices that would be
generally

known

to

competent

programmers,

ascertainable by proper means."

Dr.

i . e.,

were

"readily

Cernica's opinions on what

constituted a trade secret were derived from other individuals at
BMI (e.g., Mer

Romesberg whose expertise is unknown) to whom he

would "rather defer" on the questions of whether something was a
trade secret,

whether it was innovative,

its potential economic

value, and what others in the industry know or use.
Doc. No. 138, Exh. 0, at 143, 164, 166, 184, 191,
36

(See,

e.g.,

192, 197-198.)

In short,

contrary to BMI' s

argument,

testimony raises issues of materi
summary

judgment on

Secrets were in

the

nothing in Dr.

Cernica' s

fact sufficient to withstand

question of whether

the

leged Trade

ct worthy of protection under the PUTSA.

See

Brown & Brown, Inc. v. Cola, CA No. 10-3898, 2011 U.S. Dist. LEXIS
31147, *25 (E.D. Pa. Mar. 23, 2011)
party can meet

(at summary judgment the moving

s burden by pointing out that there is no evidence

to support the non-moving party's claims and the opposing party
"must do more than simply show that there is some metaphysical
doubt as to material facts")

(quoting Matsushita,

475 U. S. at 586.)

"To prevail under the terms of the PUTSA, the.
[must J demonstrate the existence of a trade secret."

.plaintiff
Hecht v.

Babyage, CA No. 10-724, 2010 U.S. Dist. LEXIS 106895, *13 (M.D. Pa.
Oct.

6,

2010).

In considering a motion for

courts have relied on reports by defendants'

summary

judgment,

experts which show

that the purported trade secrets (1) are readily ascertainable by
t

al and error of others in the field,

(2) are nothing more than

"mere variations on widely used processes," or (3) are techniques
"well understood and commonly used" in the disc
Simonton Bldg. Prods., CA No. 08
*37-*40

Trade

(D.

Kan.

Secrets

Jan.

Act

26,

ine.

Johnson v.

198, 2011 U.S. Dist. LEXIS 7671,

2011)

incorporating

(applying the Minnesota Uniform
the

same

de

tion

of

"trade

secret" as the PUTSA.)

In the face of such expert reports,

the

plaintiff

simply

and

cannot

rely

on
37

"unconvincing

arguments

uncompelling analogies."
BMI

as

its

particular

second

Id. at *39.

expert

who

Dr. Cernica was offered by

would

be

"able

to

testify

with

y" regarding "an estimated cost of development of the

misappropriated

trade

secrets,

the

specific

nature

and

functionality of the identified trade secrets[,] . . . what makes the
claimed trade secrets unique and not commonly known in the industry
or to the general public

[and]

security measures taken by Best

NOMOS to protect the alleged trade secrets."
The Court

is not persuaded by Dr.

accomplished any of these goals.

(Doc. No. 99 at 2-3.)

Cernica' s

testimony that he

Summary judgment is granted in

favor of Accuray on BMI's claim that it violated the PUSTA.
Before discussing each of the remaining tort claims against
Accuray and/or the Individual Defendants, we

arify the scope of

our

to

review.

Accuray

correctly argues

that

the

extent

allegations pertain to the Alleged Trade Secrets, the tort

the
aims

are pre-emptedi consequently, in the discussions which follow, we
have omitted reference to this general argument.
argues, its claims apply not only to the

However, as BMI

leged Trade Secrets, but

to other BMI confidential and proprietary business information as
well.

In addition, the tortious interference with contract claim

and conspiracy claims are not necessarily pre-empted by the PUTSA.
See

12

Pa.

C.S.

§

5308.

Therefore,

for each of the remaining

claims in the Accuray Case, we limit our discussion to confidential
and proprietary business information which does not rise to the
38

level

of

a

Defendants

trade
which

secret

did

not

and

to

pertain

actions
solely

allegedly

to

the

taken

Alleged

by

Trade

Secrets.
B.

Count V - Conversion by Accuray

1.

BMI's claims:

Best Medical alleged that when the

four Individual Defendants "copied, retained and stole confidential
business and proprietary information," they were doing so as
"servants and agents of the Defendant Accuray,
course and scope of their agency."
156-158.)

Because

confidential

Accuray

knew

acting within the

(Accuray Case, Complaint,
"the

purloined

and

~~

converted

formation and trade secrets" belonged to BMI, its

willful, intentional, malicious and egregious retention and use of
that property constituted a wrongful conversion under Pennsylvania
law.

(Id.,

~~

159, 162.)

2.

Accuray's arguments:

Accuray argues that BMI has

failed to introduce any record evidence in support of its claims
that non-trade secret confidential information was taken by the
Individual Defendants and improperly shared with Accuray.
No. 119 at 2

24; Doc. No. 132 at 13, 18-19.)

3.
Pennsylvania

(Doc.

evant
law

as

law:

"the

Conversion

deprivation

of

is

defined

another's

under

right

of

property, or use or possession of a chattel, or other interference
therewith,

without

justification."

the

owner's

consent

and

without

legal

Universal Premium Acceptance Corp. v. York Bank &
39

Trust Co.,

69 F.3d 695,

704

(3d Cir.

1995).

A viable claim of

conversion of confidential business information must allege that
the defendant acquired the information through misconduct.

Ideal

Aerosmith, Inc. v. Acutronic United States, Inc., CA No. 07-1029,
2007 U.s. Oist. LEXIS 91644, *27 (W.O. Pa. Oec. 13, 2007), citing
Oen-Tal-Ez, Inc. v. Siemens Capital Corp., 566 A.2d 1214, 1231 (Pa.
Super. Ct. 1989).
The PUTSA explicitly pre-empts claims of conversion as they
apply to trade secrets.

See 12 Pa. C.S.

§

5308, stating that the

PUTSA displaces conflicting tort law providing civil remedies for
misappropriation of a trade secret.

However, "[i]nformation need

not rise to the level of a trade secret in order to qualify for
protection under other theories.
n. 9.

Pennsylvania

courts

u

Youtie,

have

adopted

Restatement (2d) of Torts which states:

626 F. Supp.2d at 522
Section

759

of

the

"One who, for the purpose

of advancing a rival business interest, procures by improper means
information about another's business is liable to the other for the
harm

caused

information.

by
u

his

possession,

See Pestco,

Inc.

v.

disclosure

or

use

Associated Prods.,

of
Inc.,

the
880

A.2d 700, 708-709 (Pa. Super. Ct. 2005).

Even after enactment of

the

law

PUTSA,

courts

applying

Pennsylvania

have

continued

to

recognize a separate tort of conversion regarding confidential or
proprietary information. See, e.g., Pierre & Carlo, Inc. v. Premier
Salons, Inc., 713 F. Supp.2d 471, 481-482 (E.O. Pa. 2010)
40

(allowing

conversion claim to proceed inasmuch as the Restatement of Torts §
759 cmt. b, identi
i.e.,

customer lists as confidential information,

"information

about

one's

business

whether

or

not

it

constitutes a trade secret"); Cenveo Corp. v.

Slater, CA No. 06­

2632,

Pa.

2007 U.S.

("without

Dist.

clear

LEXIS 9966,

intent,

it

*13

should

(E.D.

not

be

Feb.

assumed

13,

2007)

that

the

Pennsylvania legislature's enactment of the [PUTSA] was intended to
abrogate

common

law

information that,

conversion

claims

based

though not a trade secret,

on

the

taking

of

was nonetheless of

value to the claimant"); and EXL Labs., LLC v. Egolf, CA No. 10­
6282,

2011 U.S.

Dist.

LEXIS 25295,

*24

(E.D.

Pa. Mar.

11,

2011)

(reasoning at the motion to dismiss stage that if the court were to
dismiss the plaintiff's conversion c

im and later determine that

the confidential information was not protected by the PUTSA,

the

plaintiff would be left without a remedy.)

4.

Discussion and conclusion:

BMI in effect concedes

that the viability of its conversion claim is determined by this
Court's decision on the PUTSA claim.
It argues
be

correctly

pre-empted

information

if

the

(Doc. No. 128 at 6 and 10.)

that the common law conversion claim would
Court

misappropriated

were
by

to

determine

Accuray

and/or

that
the

the

only

Individual

Defendants was the Alleged Trade Secrets, i.e., a violation of the
PUTSA.

(Id.,

at 10.)

BMI's argument.

Unfortunat

y,

that is the full extent of

That is, BMI appears to assume that the conversion
41

claim

must

go

forward

if,

as

has

been

decided

here,

the

GetDoseSlice and Dose Look Up code segments are not protected trade
secrets.

But BMI offers no argument or evidence to support its

conversion allegations.

For instance,

there is no evidence to

support its claim that the Individual Defendants were acting as the
"agents" of Accuray when they left BMI with non-trade secret but
confidential information on their computers.

BMI also appears to

have given up on the argument that the "tens of thousands of files"
on

the

Individual

Defendants'

computers

contained

con

dential

and/or proprietary information other than the Alleged Trade Secrets
since not a single example of such information is mentioned in
BMI's

brief

judgment.

in

opposition

to

the

Accuray

motion

for

summary

The Court has carefully reviewed the other pleadings

filed by BMI in opposition to the Individual Defendants' motions
(Doc. Nos.

146 and 148)

and has found no examples of other non­

trade secret yet confidential information.
In sum, BMI has failed to show that the Individual Defendants
acquired the documents

and

files

found

on their

computers and

storage media by improper means, much less that Accuray acquired
such information through their misconduct

thereafter.

Summary

judgment on this claim is granted in favor of Accuray.
C.

Count VI -- Unfair Competition by Accuray
l.

BMI's

claims:

BMI

makes

numerous

regarding unfair competition in its Complaint.

42

allegations

First, it alleges

that Accuray tortiously interfered with the employment contracts it
had with Hill, Spellman, Bittman and Scherch in order to obtain an
unfair competitive advantage.

(Accuray Case,

~

Complaint,

122.)

Second, the purpose of the alleged conspiracy among Accuray and the
Individual Defendants was to gain an unfair competitive advantage
in the marketplace and/or to intentionally harm BMI.

~

(Id.,

129.)

Most specifically, BMI claims that Accuray unfairly competed with
it by

(1)

systematically inducing the

Individual

leave

BMI

and

wrongfully

Individual

move

to

Defendants

Information; and (3)

to

Accuray;
steal

(2)
and

reveal

BMI's

Defendants to
inducing

the

Confidential

using the stolen information in a successful

attempt to destroy or cripple an integral part of BMI's business.
(Id.,

~~

163-166.)

BMI alleges it is entitled to punitive damages

on this claim because Accuray's actions were "willful, intentional,
u

malicious and under the circumstances egregious.

2.

Accuray's arguments:

(Id.,

~

168.)

Accuray argues that even if

this claim is not pre-empted by the PUTSA, BMI is attempting to use
the tort of unfair competition as "a virtual catch-all u for other
forms

of

wrongful

business

conduct,

rejected by Pennsylvania courts.

a

tactic

which

has

been

Second, since unfair competition

is "generally understood as the act of passing off one's goods as
those of another u and there is no evidence to support such a claim
in this matter, Count VI must fail.
3.

Relevant

law:

(Doc. No. 132 at 19-20.)

Contrary
43

to

Accuray's

second

argument, the Pennsylvania Supreme Court has noted that in addition
to the traditional scope of "unfair competition" which limits this
tort to the act of "palming off of one's goods as those of a rival
trader," the concept has been extended in some business settings to
include misappropriation as well as misrepresentation.

Pottstown

Daily News Publishing Co. v. Pottstown Broadcasting Co., 192 A.2d
657,

662

(Pa.

1963)

(internal citations omitted.)

"Pennsylvania

courts have recognized a cause of action for the common law tort of
unfair competition where there is evidence of, among other things,.
.

tortious interference with contract,

improper inducement of

another's employees, and unlawful use of con

dential information."

Synthes (USA) v. Globus Med., Inc., CA No. 04-1235, 2005 U.S. Dist.
LEXIS 19962, *24 (E.D. Pa. Sept. 14, 2005)
EXL Labs.,

2011 U.S.

Dist.

(citing cases); see also

LEXIS 25295 at *26,

recognizing that

Pennsylvania courts have adopted a definition of unfair competition
which is coextensive with that in the Restatement
Competition, § 1

(1995).

However,

(3d)

of Unfair

"the overwhelming majority of

courts have rejected expansive dictionary definitions of
competition'

'unfair

that generally encompass harms to the public."

USX

Corp. v. Adriatic Ins. Co., 99 F. Supp.2d 593, 620 (W.D. Pa. 2000)
(internal quotations omitted.)

"[I]f the means of competition are

otherwise tortious with respect to the injured party,

they will

also ordinarily constitute an unfair method of competition . . . .
Nevertheless, the term may not be construed as a virtual catch-all
44

for any form of wrongful business conduct or to include all forms
of modern business torts.
508, 522 (E.D. Pa. 2010)

4.

H

Giordano v.

Claudio,

714 F.

Supp.2d

(internal quotations omitted.)

Discussion and concl usion:

BMI's alleged acts of unfair competition.

We

consider each of

rst,

the claim that

Accuray engaged in unfair competition by tortiously interfering
with the employment contracts between BMI/NOMOS and the Individual
Defendants precisely duplicates an allegation in Count I.
applies to the conspiracy claim raised in Count II.
competi tion claim therefore fails

The same
The unfair

insofar as it rests on these

allegations, because, as discussed below, those tort

cannot

withstand summary judgment.
We turn to the three-part claim in the Complaint at
168,

that is,

Accuray

(1)

Information;

163­

induced the Individual Defendants to

leave BMI and move to Accuray i
Confidential

~~

(2)

(3)

used

induced them to steal BMI' s
the

stolen

in

rmation

to

destroy or cripple BMI's business.
If

Accuray

had

systematically

induced

the

Individual

Defendants to leave BMI in order to gain an unfair market advantage
over it,

we agree with BMI that such actions would constitute a

form of unfair competition.

See

Martucci, 136 A. 2d 838, 847 (Pa. 1957)

("The systematic inducing

of employees to leave their present employment and ta
another is unlawful

work with

when the purpose of such enticement is
45

to

cripple and destroy an integral part of a

competi ti ve business

organization rather than to obtain the services of particularly
gifted or skilled employees.

. [or] when the inducement is made

for the purpose of having the employees commit wrongs,

such as

disclosing their former employer's trade secrets or enticing away
his customers."}
are

based

on

However, BMI's allegations of improper inducement
pure

speculation. 22

For

example,

the

e-mails

pertaining to Hill's interview trip to Accuray in late September
2007 which BMI summarizes in great detail (Doc. No. 148 at 11-14)
imply that Hill approached Accuray about a
Hill actually received a
(compare Doc.

No.

150,

job,

not vice versa.

lower salary and bonus than he wanted

Exhs.

6 and 8)

and did not get the vice

president title he sought, evidence which would tend to refute the
claim that Accuray was trying to "entice" him to leave BMI.

There

is no evidence in the record about any pre-employment contacts
between Accuray and Bittman, Scherch or Spellman before they left
BMI,

let alone evidence from which one could infer that they had

been induced to leave or to steal BMI's Confidential Information.
Finally,

as pointed out in the discussion of Dr.

22

Bryant's

BMI offers nothing by way of argument or evidence in its brief
opposing Accuray's motion for summary judgment on this Count.
In fact,
its entire argument consists only of a reiteration, practically word-for­
word, of the allegations in the Complaint. (Compare Accuray Case,
Complaint, ~~ 163-168, with Doc. No. 128 at 10-11.) At summary judgment,
the plaintiff cannot simply rest on "unsupported assertions, conclusory
allegations, or mere suspicious beliefs," but must come forward with
sufficient evidence to raise a genuine issue of material fact.
Liberty
Lobby, 477 U.S. at 250-252 (emphasis added by the Court.)

46

expert report above in Section IV.A.4,

there is no evidence that

the extremely minor duplications which appear in the NOMOS code and
in over 1.6 million lines of Accuray code are anything other than
coincidental, thus refuting any claim that Accuray used BMI's code
to unfairly compete with
services.

it

in the development

of products

or

And, as discussed in Section IV.B.4 above, BMI appears

to have abandoned any claims based on misappropriation of other
forms of confidential or proprietary information,

e.g.,

customer

lists or strategic planning documents, which would have harmed its
market position.
In the absence of evidence to support BMI's claims of unfair
competition, summary judgment is granted in favor of Accuray.
D.

Count I -- Tortious Interference

with Contracts by Accuray and Hil1 23

BMI's claims:

1.

aware

that

the

Individual

confidentiality

agreements

agreements.

BMI alleges that Accuray was fully
Defendants
with

BMI

each
and

had
the

non-compete
terms

of

and

those

Nevertheless, Accuray tortiously interfered with the

contracts in order to obtain a competitive market advantage over,
and intentionally inflict harm on, BMI.
IJl 35.)

(Accuray Case, Complaint,

BMI argues that a series of e-mails between Accuray and

Hill, especially a reference to "hard deliverables u Hill would be
required to deliver, show how Accuray solicited Hill to terminate

23
John Does 1 through 5 are also included in this Count but as noted
above, they seem to have disappeared from the lawsuit.

47

his relationship with BMI. 24
Hill

joined

in

this

(Doc.

interference

No.

128 at 7.)

after

he

Furthermore,

became

employed by

Accuray, as shown by his acts of recruiting Scherch, Spellman and
Id.

Bittman to work for Accuray.

CJ[CJ[

Defendants' arguments:

2.

117-124.)
Accuray argues that BMI's

reliance on a single e-mail, sent after Hill had already agreed to
go to work for Accuray,

is insufficient at the point of summary

judgment to show that it tortiously interfered with the Hill-NOMOS
Agreement.

Moreover,

this

lack

of

evidence

is

particularly

egregious because Accuray produced "several hundreds of pages" of
communications

between

Hill

and

Accuray,

thus

the

absence

of

factual support for BMI's claims cannot be the result of lack of
(Doc. No. 132 at 14-16 and n. 9.)

discovery.

Hill argues that summary judgment should be entered in his
favor

on

this

claim

because

BMI

has

failed

to

introduce

any

evidence of specific acts he took which would have interfered with
the employment contracts of Bittman, Scherch and Spellman.

Nor is

there any evidence he instructed or induced the other Individual
Defendants
computers
evidence

to copy BMI's Confidential
and

that

transfer
he

it

to

Accuray.

interfered with

the

Information to their own
Finally,
agreements

there

is

no

between NOMOS

and/or BMI and the Individual Defendants by soliciting their move

24
The discussion of how Hill was allegedly solicited to provide "hard
deliverables" appears in Section V.C.4 below.

48

to Accuray.
3.

~

(Doc. No. 137,

9: Doc. No. 138 at 17-18.)

Relevant law:

To succeed on a claim of tortious

interference as applied to an existing contract, the plaintiff must
establish:
(1) the existence of a contractual relation between the
plaintiff and a third party;
(2) purposeful action on the part of
specifically
intended
to
harm
relation;

the defendant,
the
existing

(3) the absence of privilege or justification on the
part of the defendant; and
(4) actual legal damage as a result of the defendant's
conduct.
Skiff re Business, Inc. v. Buckingham Ridgeview, LP,
966 (Pa. Super. Ct. 2010)
To
claim,

establish the

(citations omitted).

third element of a

the plaintiff must

somehow "improper."

991 A.2d 956,

interference

show that the defendant's action was

Yaindl v.

Aldrich Div., 422 A.2d 611,

tortious

622

"'the absence of privilege or

Ingersoll-Rand Co.

Standard Pump-

(Pa. Super. Ct. 1978)

(the phrase

justification on the part of the

defendant,' is merely another way of stating that the defendant's
conduct must be improper.")

The Restatement (2d) of Torts, § 767,

provides a number of factors to be considered in determining if the
conduct is improper:
the actor's motive,

"(a) the nature of the actor's conduct,

(cl the interests of the other with which the

actor's conduct interferes,
by the actor,

(b)

(d) the interests sought to be advanced

(e) the social interests in protecting the freedom of
49

action of the actor and the contractual interests of the other,

(f)

the

the

proximity

or

remoteness

of

the

actor's

conduct

to

interference and (g) the relations between the parties."

Yaindl,

422 A.2d at 618.

4.
claims

Discussion and conclusion:

of tortious

interference must

support in the record.
support

its

claim

We conclude that BMI's

fail

for

lack of

factual

BMI has failed to identify any evidence to

that

someone

at

Accuray

knew

each

of

the

Individual Defendants was party to an employment agreement with
BMI,

even

nature
Second,

of

though
the

that

business

relationship might

be

surmised from the

in which Accuray

and

BMI

are

engaged.

Hill has stated under penalty of perjury that he never

asked any of the other Individual Defendants to download,
share with Accuray any BMI Confidential Information.
138, Exh . 15 ,
statement and

~

37.)

keep or

(Doc.

No.

BMI offers no evidence to refute this sworn

fact does not even address this issue in its brief

in opposition to the Hill motion for summary judgment.
The evidence shows that Accuray may have made the initial
contact with Hill on September 14, 2007, when Chris Raanes wrote:
"I heard that Nomos has just changed ownership.
to you about that."

(Doc. No. 150, Exh. 6.)25

I'd love to t

k

However, there is no

evidence that Accuray deliberately sought out Hill in an attempt to

25
Raanes and Hill knew each other prior to this date and in fact Hill
had proposed the possibility of NOMOS providing Accuray with various
treatment planning technologies.
(See Doc. No. 150, Exh. 6.)

50