Retractable Technologies, Inc. v. Becton Dickinson and Company

Filing 347

MEMORANDUM ORDER - Courts overruled all of BDs objections to Dr. Scotts opinions and anticipated testimony, BDs Motion to Preclude the Expert Testimony of Carol A. Scott is hereby DENIED. Signed by Magistrate Judge Roy S. Payne on 2/27/13. (ehs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
RETRACTABLE
TECHNOLOGIES, INC., et al.
v.
BECTON, DICKINSON AND CO.

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Case No. 2:08-CV-16-MHS-RSP

MEMORANDUM ORDER
Plaintiff Retractable Technologies, Inc. (“RTI”) alleges violations of the Sherman and
Clayton Acts, violations of the Texas Antitrust Act, false advertising in violation of the Lanham
Act, product disparagement, tortious interference with prospective contract or business relations,
and unfair competition by Defendant Becton, Dickinson and Company (“BD”). (Dkt. No. 73.)
Before the Court is BD’s Motion to Preclude the Expert Testimony of Carol A. Scott,
who has been retained as an expert witness by RTI. (Dkt. No. 157, filed January 6, 2012.) BD’s
motion seeks to exclude opinions and evidence concerning the brochure survey, the patient safe
survey, and corrective advertising damages.

Scott’s report, which includes all the survey

materials, is attached as an exhibit to BD’s motion. (Scott Rep., Dkt. No. 157-3.) BD has taken
a shotgun approach to objecting to Scott’s report, raising numerous objections and citing 30
cases in support of its motion. The Court has considered every objection raised in BD’s motion.
However, more attention has necessarily been given to those objections that are more thoroughly
briefed and appear to be more important to the parties. Having considered all of BD’s objections
individually and as whole, the Court finds that BD’s objections do not warrant excluding Dr.
Scott’s report and testimony, and instead more properly go to the weight of the evidence.
Accordingly, BD’s Motion to Preclude the Expert Testimony of Carol A. Scott is DENIED.

APPLICABLE LAW
A.

Expert Testimony
An expert witness may provide opinion testimony if “(a) the expert’s scientific, technical,

or other specialized knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony
is the product of reliable principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.” Fed. R. Evid. 702. A trial court is “charged
with a ‘gatekeeping role,’ the objective of which is to ensure that expert testimony admitted into
evidence is both reliable and relevant.” Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d
1356, 1360 (Fed. Cir. 2008).
B.

Survey Evidence
In the Fifth Circuit, survey evidence may be admitted if it is “pertinent to the inquiry,

upon a showing that the poll is reliable and was compiled in accordance with accepted survey
methods.” C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1054 (5th Cir.
1981). “In assessing the validity of a survey [courts] look to two factors: first, the manner of
conducting the survey, including especially the adequacy of the universe; and second, the way in
which participants are questioned.” Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477,
487 (5th Cir. 2004). However, usually, “methodological flaws in a survey bear on the weight the
survey should receive, not the survey’s admissibility.” Id. at 488.

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DIS
SCUSSION
A.

Brochure Su
B
urvey
1.

Objec
ction to Lea
ading Questi
ions

BD objects to Scott offer
B
o
ring any opi
inion based upon questi
ions 5 and 6 of the broc
chure
survey on the ground that they are improper closed, lead
n
ds
a
r
ding questio
ons. (Mot. a 12-13, Dkt No.
at
t.
157.) Qu
uestions 4-6 are reproduc below:
ced

***

***

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(Scott Re Ex. 5 at 6-7, Dkt. No 157-3.)
ep.
6
o.
a.

Question 5

With respect to question 5, BD argu that Scot should hav provided a simpler ch
W
ues
tt
ve
hoice
for indica
ating reduction of accid
dental needle
esticks—one that does n include the phrase “t the
e
not
to
lowest ex
xtent feasible in actual clinical settin
c
ngs.” RTI re
esponds that question 5 is not a bias or
t
sed
leading because it is posed in the form of a “quasi-fil question where “re
b
s
t
lter
n”
espondents c
could
write in their own an
nswer (Q5); [or] choose more than one option (Q5).” (Re at 9-10, Dkt.
e
esp.
,
No. 217.)
)
The brochure survey wa directed to medical professiona who are involved in the
T
e
as
als
n
purchasin process for syringes used in insti
ng
f
u
itutional clin
nical settings (See Scott Rep. Ex. 5 at 2s.
t
3, Dkt. No. 157-3.) In this con
N
ntext, the co
omplained o answer ch
of
hoice does not appear to be
unduly le
eading or bia
ased. See Sh Seidman Diamond, Reference G
hari
n
Guide on Sur
rvey Researc in
ch,
Federal Judicial Cen
J
nter, Reference Manual on Scientific Evidence, 387-394 (3d ed.) (discu
o
c
d
ussing
s).
principles and metho of formu
ods
ulating surv questions Therefor the Court finds that BD’s
vey
re,
t
objection to question 5 merely go to the we
n
n
oes
eight of the e
evidence.

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b.

Question 6

With respect to question 6, BD argues that it was improper to ask respondents to
“‘indicate the percentage reduction you expect “Safe”, “Safety”, or “Safety-Engineered”
products to provide,’ without first asking whether respondents had any such expectation.” (Mot.
at 12, Dkt. No. 157). RTI responds that the question is not improper because respondents could
“choose any amount from zero to one hundred percent (Q6); or choose ‘don’t know / not sure’
(Q5, Q6).” (Resp. at 10, Dkt. No. 217.)
BD concedes that the responses to other questions (presumably questions 4 and 5), “show
that respondents did not have any such expectation” that safety products would reduce
needlesticks by any given percentage reduction. (Mot. at 12, Dkt. No. 157.) This suggests that
the brochure survey’s design is sufficiently robust such that the alleged deficiency in question 6
does not render the survey as a whole unreliable, and that BD’s objection is best addressed
through cross-examination. Accordingly, the Court finds that BD’s objection to question 6 only
goes to the weight of the evidence and does not warrant exclusion.
2.

Objection to the Brochure Survey’s Controls

BD contends that the brochure survey must be excluded because Scott failed to use an
experimental control group. BD argues that in conducting a false advertising survey, a control
group should be shown a control advertisement (a control stimulus) that is similar to the
allegedly false advertisement but does not contain the allegedly misleading message. The expert
then compares the responses to the control advertisement and the responses to the allegedly false
advertisement to determine the degree to which the allegedly false advertisement is deceptive or
misleading. Without an adequate control, BD contends that Scott cannot separate the effects of
the respondents’ preexisting knowledge or beliefs from the effects of the allegedly false
advertisement. (See Mot. at 7-9, Dkt. No. 157.)
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RTI responds that the survey was designed to determine what messages are conveyed by
BD’s advertisement, and not to determine whether the advertisement caused deception. Because
the survey was not testing causation, RTI contends that no control group was necessary. RTI
maintains that a control group was nonetheless present because half of the respondents were
asked general questions regarding their beliefs (questions 4-6 reproduced above) prior to being
showing the advertisement (while the experimental group was asked the same questions after
being shown the advertisement), which permits Scott to determine whether the advertisement
alone created those beliefs. (See Resp. at 2-3, Dkt. No. 217.)
“[B]efore a court can determine the truth or falsity of an advertisement’s message, it
must first determine what message was actually conveyed to the viewing audience.” Johnson &
Johnson * Merck Consumer Pharm. Co. v. SmithKline Beecham Corp., 960 F.2d 294, 298 (2d
Cir. 1992). Surveys have generally been accepted as proof of the message conveyed by an
advertisement. Id.; see also Scotts Co. v. United Industries Corp., 315 F.3d 264, 280 (4th Cir.
2002) (“The purpose of consumer surveys in false advertising cases is to determine the message
actually conveyed to consumers.”). In the Fifth Circuit, survey evidence may be admitted if it is
“pertinent to the inquiry, upon a showing that the poll is reliable and was compiled in accordance
with accepted survey methods.” C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d
1049, 1054 (5th Cir. 1981). See generally, Scott Fetzer Co. v. House of Vacuums Inc., supra.
The Court finds that BD’s criticism of the brochure survey’s controls does not warrant
excluding the survey, and but instead goes to the weight of the evidence. The Court is persuaded
that questions 4-6, which were posed to a subset of respondents prior to being shown the
stimulus, provide some basis to control for the respondents’ preexisting beliefs.

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The cases cited by BD do not compel a different result.

In Pharmacia Corp. v.

GlaxoSmithKline Consumer Healthcare L.P., survey evidence was offered to prove that the
comparative ad at issue contained an implied message that defendant’s product was superior to
plaintiff’s product. 292 F. Supp. 2d 594, 600 (D.N.J. 2003). The court, which was acting as the
finder of fact, determined that the survey should be given no evidentiary weight because it did
“not adequately control for consumers’ preexisting beliefs that comparative commercials imply
some sort of superior efficacy.” Id. at 604-605. In other words, because it was known that
consumers generally imply a claim of superiority from comparative advertising, a survey should
control for this preexisting belief when it seeks to prove that the advertisement’s content itself
implies a claim of superiority. BD has not shown that the advertising at issue in this case suffers
from a similar well-known bias or flaw.
In Proctor & Gamble Pharmaceuticals, Inc. v. Hoffmann-LaRoche, Inc., the consumer
survey at issue was excluded because it suffered from several serious methodology flaws, and
the court did not rely solely on the perceived inadequacy of the control stimulus. 2006 WL
2588002, at *22-25 (S.D.N.Y Sept. 6, 2006). The Court is not persuaded that Scott’s brochure
survey is similarly flawed.
3. Objection to Using the Survey to Measure the Brochure’s Conveyed Messages
BD raises several related arguments that go to the relevance and proper use of the
brochure survey evidence. (Mot. at 9-11, Dkt. No. 157.)
a.

Relating the Brochure Survey Results to the
Meaning of BD’s Safety Claims

First, BD argues that it would be improper to permit RTI to argue that Scott’s results
“relate to the meaning of ‘safety’ in reference to BD’s safety-engineered products . . . ” because

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survey research has never been used to “set the standard to which objectively verifiable claims
must be held.” (Id. at 10.)
The two principal cases upon which BD relies do not appear to apply to the facts in this
case. In Mead Johnson & Co. v. Abbott Laboratories, the appellate court found that the trial
court erred by relying on flawed consumer survey evidence to find that the phrase “‘1st Choice
of Doctors’ conveyed to consumers the message that at least a majority of physicians prefer [the
product] on grounds of qualitative superiority” as opposed to the phrase’s objectively
determinable meaning that “more physicians prefer this product than any of its rivals.” 201 F.3d
883, 883-85 (7th Cir. 2000). Similarly, in American Italian Pasta Co. v. New World Pasta Co.,
the appellate court found that the phrase “America’s Favorite Pasta,” both standing alone and in
the context of the relevant advertising, was not a specific measurable claim that is actionable
under the Lanham Act. 371 F.3d 387, 391-93 (8th Cir. 2004). Thus, the trial court erred in
relying on consumer survey evidence to find that “America’s Favorite Pasta” conveyed to
consumers a claim that the product at issue was the number one brand. Id. at 393. As explained
by the American Italian Pasta court, both cases involved the use of survey evidence to establish
a claim benchmark that was unsupported by the plain language of the advertisement:
To allow a consumer survey to determine a claim’s benchmark
would subject any advertisement or promotional statement to
numerous variables, often unpredictable, and would introduce even
more uncertainty into the market place. A manufacturer or
advertiser who expended significant resources to substantiate a
statement or forge a puffing statement could be blind-sided by a
consumer survey that defines the advertising statement differently,
subjecting the advertiser or manufacturer to unintended liability for
a wholly unanticipated claim the advertisement’s plain language
would not support. The resulting unpredictability could chill
commercial speech, eliminating useful claims from packaging and
advertisements. As the Seventh Circuit noted, the Lanham Act
protects against misleading and false statements of fact, not
misunderstood statements.

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Id. at 393
3-394 (citing Mead John
g
nson, 201 F.3 at 886).
3d
The same co
T
oncern is not presented in this case Unlike M
t
e.
Mead Johnso and Ame
on
erican
Italian Pasta, no part contends that the “saf
P
ty
fety” claims at issue here are mere p
e
puffery or tha the
at
plain and ordinary meaning of the claims should apply BD itself argues tha the approp
d
m
t
s
y.
f
at
priate
benchma is set by FDA and OSHA regula
ark
O
ations. (See Mot. at 11, Dkt. No. 15
57.) Given t
that a
fact dispu exists wi respect to the meanin of the adv
ute
ith
o
ng
vertising cla
aims in this c
case, and tha BD
at
has not offered evide
o
ence that for
recloses the consideratio of survey evidence t
on
y
that bears on this
n
issue, the Court is pe
e
ersuaded that the survey evidence is r
t
relevant and should not be excluded
d
d.
b.

Asking Re
espondents About Thei Beliefs In
ir
nstead of the Message
e
Conveyed by the Stim
d
mulus

BD next argu that broc
B
ues
chure survey should be e
y
excluded bec
cause courts exclude sur
s
rveys
where respondents are asked wh their beli are as o
a
hat
iefs
opposed to w
what message is conveye by
ed
the adver
rtisement. (Mot. at 10-11, Dkt. No. 157.) The Court finds that this ob
(
e
s
bjection doe not
es
warrant exclusion of the brochure survey.
e
f
Questions 2 and 3 are cle
Q
a
early directe to determ
ed
mining the messages conv
veyed by th BD
he
brochure:

***

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(Scott Rep. Ex. 5 at 5-6, Dkt. No. 157-3.) Moreover, BD itself has argued that a proper survey
controls for respondents’ preexisting beliefs. (Mot. at 7-8, Dkt. No. 157.) The Court finds that it
makes little sense to require Scott to consider the effects of respondents’ preexisting beliefs on
the survey’s findings, but not permit Scott to explain that portion of the brochure survey’s
methodology and findings to the jury. BD’s objection on this ground is overruled.
c.

Brochure Survey Findings Conflict with FDA and OSHA Definitions

Finally, BD argues that the brochure survey cannot be used to set the standard for
assessing BD’s safety claims because the brochure survey’s findings conflict with definitions set
by regulations promulgated by the FDA and OSHA. (Id. at 11.)
The Court finds that BD has not adequately substantiated its contention that any FDA or
OSHA regulation governs determining whether BD’s advertising claims in this case are false or
misleading. The Sandoz case cited by BD explains that there are key differences between the
statutes enforced by the FDA and OSHA, and the Lanham Act:
[The Lanham Act] provides a private remedy to a commercial
plaintiff who meets the burden of proving that its commercial
interests have been harmed by a competitor's false advertising. The
[Food, Drug, and Cosmetic Act] in contrast, is not focused on the
truth or falsity of advertising claims. It requires the FDA to protect
the public interest by “pass[ing] on the safety and efficacy of all
new drugs and . . . promulgat[ing] regulations concerning the
conditions under which various categories of OTC drugs . . . are
safe, effective and not misbranded.”
Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 230 (3d Cir. 1990).
The issue presented in Sandoz was “whether a Lanham Act false labeling claim exists
against a manufacturer who lists an ingredient as ‘inactive’ when FDA standards seem to require
that such an ingredient be labeled as ‘active.’” Id. In other words, the gravamen of the
plaintiff’s claim was that that the label was false because FDA labeling standards for drugs
seemed to require that the ingredient be labeled as “active.” Because the FDA had not decided
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whether the type of ingredient at issue must be labeled “active,” the appellate court found that
the trial court erred in applying the FDA regulations on its own, and deciding that it should have
been so labeled. Id. at 230-31. However, Sandoz does not stand for the proposition that any
definition provided by a regulation necessarily governs determining whether a statement is
actionable under the Lanham Act.
Here, BD merely provides a string of citations to definitions given in regulations, without
(1) any analysis or explanation of how those definitions apply to the advertising claims at issue
in this case, or (2) any analysis of why the regulation at issue should control over the Lanham
Act. Accordingly, BD’s objection is overruled.
B.

Patient Safe Survey
BD argues the patient safe survey should be excluded because (1) “it was preordained

that respondents would express interest in a product that they were told to assume would benefit
their patients;” and (2) that the survey “is an unreliable measure of whether real potential
customers would purchase the product and at what price” because respondents were told “to
assume the truth of clinical claims that their healthcare facilities usually systematically test.”
(Mot. at 13-14, Dkt. No. 157.) RTI provides a comprehensive defense of the survey in its
response. (Resp. at 11-13, Dkt. No. 217.) The Court finds that these objections go to the weight
of the evidence, and do not warrant exclusion of the patient safe survey.
BD also objects, in conclusory fashion, that the survey lacks proper controls and uses
leading questions. The Court has reviewed the questions associated with the patient safe survey,
and finds that the record does not reveal reliability or methodology concerns that warrant
exclusion of the survey. (See questions 18-22, Scott Rep. Ex. 5 at 13-14, Dkt. No. 157-3.) BD’s
objections to the patient safe survey are overruled.

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C.

Corrective Advertising Damages Opinion
BD objects to Scott’s “estimate of corrective advertising damages that is based on

unsupported assumptions rather than reliable analysis.” (Mot. at 14, Dkt. No. 157.) The focus of
.
BD’s less than one page of argument dedicated to the corrective advertising damages opinion is
that key assumptions in Scott’s analysis have no factual support. On this record, the Court finds
that these criticisms more properly go to the weight of the evidence, and do not warrant
exclusion. Accordingly, BD’s objections to the corrective advertising opinion are overruled.
CONCLUSION
Having considered and overruled all of BD’s objections to Dr. Scott’s opinions and
anticipated testimony, BD’s Motion to Preclude the Expert Testimony of Carol A. Scott is
hereby DENIED.
SIGNED this 3rd day of January, 2012.
SIGNED this 27th day of February, 2013.

____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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