Sanfilippo v. Brewerton
ORDER AND OPINION RULING ON AND ADOPTING 26 the REPORT AND RECOMMENDATION of Magistrate Judge Bristow Marchant GRANTING 19 the Defendant's Motion to Dismiss. The Court DISMISSES the complaint (Dkt. No. 1), and ORDERS that Defendant may file a motion for attorney's fees under Rule 54(d)(2) of theFederal Rules of Civil Procedure within fourteen days of the date of this Order. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 11/20/2017. (sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Louis C. Sanfilippo, M.D.,
Timothy David Brewerton, M.D.,
Civil Action No. 2:17-183-RMG
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that Defendant's motion to dismiss be granted. For the reasons set forth
below, the Court adopts the Report and Recommendation.
Plaintiff alleges U.S. Patent 8,318,813 (the "' 813 Patent"), which claimed a method for the
treatment of Binge Eating Disorder with the drug Vyvanse, was issued by the United States Patent
and Trademark Office ("USPTO") on November 27, 2012. Plaintiff alleges that he is the patent's
"lone inventor" and is also the "exclusive and sole manager and member" of the 813 Patent's last
two owners, Lucerne Biosciences, LLC (which owned the patent from January 8, 2015 to present)
and LCS Group, LLC (which owned the patent from April 15, 2008 to January 8, 2015).
Plaintiff alleges that on October 25 , 2013 , he signed a Confidentiality Disclosure
Agreement with Shire LLC relating to a potential business opportunity involving the ' 813 Patent
and related patent applications.
Plaintiff alleges that thereafter, on May 9, 2014, Shire
Development LLC, a subsidiary of Shire LLC (hereinafter collectively referred to as "Shire"), filed
a petition for an inter partes review ("IPR") of the ' 813 Patent. An IPR is a trial proceeding
conducted at the Patent Trial and Appeal Board ("PTAB") to review the patentability of one or
more claims in a patent based on the prior art. See 35 U.S.C. ch. 31.
Plaintiff alleges that Shire' s IPR petition relied exclusively on opinions set forth in a
declaration by the Defendant, Dr. Timothy Brewerton, which he signed on May 8, 2014. Plaintiff
alleges that the Defendant's declaration contained "rampant . . . misleading statements and
egregious misrepresentations" while extensively omitting "materially relevant and important
information" in order to conclude that all the claims of the ' 813 Patent would have been "obvious"
to a Person Having Ordinary Skill In The Art as of September 13, 2007, and should therefore all
be invalid. (Dkt. No. 16
11.) Plaintiff further alleges Defendant's deception was "so rampant,
so unmitigated, so repeated and apparently so premeditated in its exquisite detail that any
reasonable person would be led to conclude that unfettered deception was [the Defendant' s]
fundamental and even exclusive purpose."
On January 20, 2017, Plaintiff, proceeding prose, filed the present action, asserting statelaw claims for fraud, defamation, and negligence and attaching over 1800 pages of supporting
materials. Plaintiff alleges that the Defendant's purported misrepresentations have caused him
damages in excess of $300,000,000. (Id. ~ 27.) Defendant has twice moved to dismiss, and on
October 27, 2017, the Magistrate Judge recommended granting Defendant's motion to dismiss.
Plaintiff timely filed objections to the Report and Recommendation.
Report and Recommendation of the Magistrate Judge
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de nova
determination of those portions of the Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(l).
When a proper objection is made to a particular issue, "a district court is required to
consider all arguments directed to that issue, regardless of whether they were raised before the
magistrate." United States v. George, 971F.2d1113, 1118 (4th Cir. 1992). However, " (t]he
district court's decision whether to consider additional evidence is committed to its discretion, and
any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002).
" (A ]ttempts to introduce new evidence after the magistrate judge has acted are disfavored," though
the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v.
Jackson , 831 F. Supp. 2d 911 , 914 (M.D.N.C. 2010) (listing cases).
Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if
the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the
legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits
of the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the
allegations constitute ' a short and plain statement of the claim showing that the pleader is entitled
to relief. "' Republican Party ofN C. v. Martin , 980 F.2d 943 , 952 (4th Cir. 1992) (quotation marks
and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to "assume the truth of all
facts alleged in the complaint and the existence of any fact that can be proved, consistent with the
complaint' s allegations. " E. Shore Mkts., Inc. v. JD. Assocs. Ltd. P 'ship, 213 F.3d 175, 180 (4th
Cir. 2000). However, while the Court must accept the facts in a light most favorable to the nonmoving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
the requirement of plausibility does not impose a probability requirement at this stage, the
complaint must show more than a "sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the
pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.
The Court agrees fully with the Magistrate Judge's recommendation that this action be
dismissed because Defendant has absolute immunity from Plaintiff's claims. It is well established
that a litigant may not challenge adverse expert evidence by suing the adverse party' s expert
witness. See Briscoe v. LaHue, 460 U.S. 325, 334 (1983). Witnesses have been immune from
damages liability for their testimony in judicial proceedings since before the English settlement of
North America. See Cutler v. Dixon, 76 Eng. Rep. 886 (K.B. 1585). Proceedings before the PTAB
are judicial proceedings. See, e.g. , EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 746 F.2d
375 , 378 (7th Cir. 1984).
The proper forum for challenging the veracity of Defendant's expert opinion was the IPR
proceeding before the PTAB. Plaintiffs counterargument is that Defendant was the "de facto
author and architect" of Shire' s IPR petition and so was not an expert witness for immunity
purposes. (See, e.g. , Dkt. No. 23 at 3-4.) That argument is illogical, unsupported by any legal
authority, and contradicted by common sense.
The record conclusively demonstrates that
Defendant was Shire' s retained expert witness. (See Dkt. No. 26 at 7.) Parties litigating highly
technical issues like pharmaceutical patents rely heavily- sometimes entirely--on professionals
having expertise in the field. For that matter, even in ordinary litigation, parties rely almost entirely
on professionals having expertise in the field-i. e., lawyers-to author complaints, petitions, and
other pleadings. Regardless, even if he were not an "expert" witness, he manifestly is a witness
of some sort, because he is a person offering sworn testimony in a judicial proceeding, and so is
absolutely immune from Plaintiff's claims.
Further, the Court takes notice that the PTAB did not enter an adverse judgment against
Plaintiff because it credited Defendant's opinion. Instead, the PTAB construed Plaintiff's willful
refusal to respond to a show cause order (issued because Plaintiff failed to respond as ordered to a
motion for sanctions against him) as an abandonment of his claims and as a request for adverse
judgment. See Shire Dev. LLC v. LCS Group, LLC, No. IPR2014-739 (P.T.A.B. Jun. 4, 2015),
doc. 33. Even if Defendant were not absolutely immune from Plaintiff's claims, Plaintiff could
not show that Defendant damaged him. The IPR proceeding concluded with the cancellation of
the '813 Patent because of Plaintiff's repeated and willful misconduct during the IPR proceeding,
not because of anything Defendant did.
Still further, even if Defendant were not absolutely
immune from Plaintiff's claims and even ifthe PTAB cancelled the patent because it credited Dr.
Brewerton's report, the PTAB's decision to credit the report would be binding on this Court. This
Court has no jurisdiction to review the decisions of the PTAB. The United States Circuit Court of
Appeals for the Federal Circuit has exclusive jurisdiction to hear appeals from IPR proceedings at
the PTAB. 28 U.S.C. § 1295(a)(4)(A).
Plaintiff has filed copious objections to the Report and Recommendation. All are without
merit. Plaintiff objects that the Magistrate Judge made his recommendation "without consideration
of even a single fact related to the scope and egregiousness of Defendant's misrepresentations."
(Dkt. No. 28 at 2 (capitalization modified).) The Magistrate Judge rightly did not address the
merits of Plaintiff's allegations that Defendant's report contained false information because
Defendant is immune from any requirement to defend the content of his report before this Court.
Plaintiff likewise objects that the Magistrate Judge did not consider any evidence that Defendant
was the "de factor [sic] architect" of Shire's IPR petition. (Id. at 4.) Again, the Magistrate Judge
rightly did not address the merits of that claim because there is no basis in law to abrogate an
expert witness's absolute immunity simply because a party relies heavily on that witness's
Plaintiff goes on to object that Shire's lawyers (who were not lawyers for the Defendant in
this action) "used their legal skills to expunge public records from the IPR that might implicate the
global pharmaceutical company" and to "support the cover-up." (Dkt. No. 28 at 7-8.) Actually,
Shire's lawyers simply asked Plaintiff to cease ex parte communications threatening Shire's
employees and Dr. Brewerton during the IPR proceeding.
Plaintiff continued those
communications even after the PTAB ordered Plaintiff to cease. When Shire moved for sanctions,
Plaintiff terminated his lawyer and failed to respond to the motion for sanctions. The PTAB then
issued a show cause order, and when Plaintiff failed to respond to that, the PTAB cancelled the
'813 Patent and closed the case. See Shire, No. IPR2014-739 (documents 26, 27, 29, 30, 32, 33).
Plaintiff further objects that Shire's lead attorney for the IPR proceedings (who did not
represent the Defendant in this action) has filed an amicus brief on behalf of Shire in an unrelated
Supreme Court case that argues IPRs are unconstitutional because they are not held before an
Article III tribunal. See Brief for Shire Pharmaceuticals LLC as amicus curia in support of neither
party, Oil States Energy Services, LLC v. Greene 's Energy Group, LLC, 137 S.Ct. 2239 (2017)
(No. 16-712). How the constitutional validity of IPR reviews at the PTAB relates to Plaintiffs
fraud, defamation, or negligence claims against Defendant is a mystery.
Finally, Plaintiff objects that denial of his suit will permit clinicians to rely on Defendant's
expert testimony when directing the treatment of obesity or bulimia nervosa, which Plaintiff claims
would harm public health. That objection is again without merit. Responsibility for establishing
medical standards of care rests with the medical profession, not with parties purportedly litigating
a fraud and defamation action.
Plaintiff is engaging in an ongoing, abusive use of legal process. When his '813 Patent
was challenged, he engaged in improper behavior before the tribunal even after he was ordered to
cease. Rather than answer for his conduct, he ceased participation in the proceedings and, as a
result, the ' 813 Patent was cancelled. Now he brings a lawsuit lacking any arguable basis in law
or fact against a witness from that proceeding. This frivolous suit likely has created significant
legal expenses. The Court therefore grants Defendant leave to file a motion for attorney's fees
under Rule 54( d)(2) of the Federal Rules of Civil Procedure within fourteen days of the date of
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge (Dkt. No. 26) as the Order of the Court, DISMISSES the complaint (Dkt. No.
1), and ORDERS that Defendant may file a motion for attorney's fees under Rule 54(d)(2) of the
Federal Rules of Civil Procedure within fourteen days of the date of this Order.
AND IT IS SO ORDERED.
United States District Court Judge
Charleston, South Carolina
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?