CR Bard et al v. Medical Components

Filing 1053

MEMORANDUM DECISION AND ORDER denying as moot Defendant's Short Form Discovery Motion and Defendant's Motion for Leave to File Surreply (Doc. Nos. 1041 & 1037 ). Signed by Magistrate Judge Daphne A. Oberg on 9/25/24. (dle)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MEMORANDUM DECISION AND ORDER
DENYING AS MOOT DEFENDANT’S
SHORT FORM DISCOVERY MOTION
AND DEFENDANT’S MOTION FOR
LEAVE TO FILE SURREPLY
(DOC. NOS. 1041 & 1037)

C.R. BARD, INC.; BARD PERIPHERAL
VASCULAR, INC.; and BARD ACCESS
SYSTEMS, INC.,
Plaintiffs,
v.

Case No. 2:17-cv-00754

MEDICAL COMPONENTS, INC.,

District Judge Howard C. Nielson, Jr.

Defendant.

Magistrate Judge Daphne A. Oberg

In this protracted patent-infringement case, Defendant Medical Components, Inc.
(“MedComp”) has now filed two motions: a motion for leave to file a surreply 1 in support
of MedComp’s pending motion to stay, 2 and a motion to take an additional deposition
and supplement MedComp’s expert reports. 3 Both of MedComp’s motions are
premised on the argument that the rebuttal expert reports of Plaintiffs (collectively,
“Bard”) rely on trial testimony Bard previously contended was irrelevant. 4 MedComp
argues this inconsistency entitles MedComp to re-depose Kelly Powers, 5 supplement its
(Mot. for Leave to File Surreply in Supp. of Mot. to Stay (“Surreply Mot.”), Doc. No.
1037.)
1

(See Def.’s Mot. to Stay Pending Fed. Cir. Resol. of the Validity of Claims Using
Terms Present in Bard’s Asserted Claims (“Mot. to Stay”), Doc. No. 1029.)

2

(Def.’s Short Form Disc. Mot. to Take Dep. and Suppl. Expert Reps. (“SFDM”), Doc.
No. 1041.)
3

4

(See Surreply Mot. 2, Doc. No. 1037; SFDM 2, Doc. No. 1041.)

Mr. Powers is Bard’s former Vice President of Research and Development. (Pls.’
Opp’n to MedComp’s Short Form Mot. to Take Dep. and Suppl. Expert Reps. (“Opp’n to
SFDM”) 1, Doc. No. 1043.)

5

1

expert reports, and file a surreply in support of its pending motion to stay. 6 As explained
below, where Bard represents it has now submitted amended expert reports which no
longer rely on the disputed testimony, MedComp’s motions are denied as moot.
ANALYSIS
MedComp’s arguments relate to Bard’s position in opposing MedComp’s motion
to stay, which was filed on June 14, 2024 and remains pending. 7 MedComp seeks to
stay this case pending the Federal Circuit’s resolution of an appeal in C.R. Bard v.
AngioDynamics, 8 a case in which the District of Delaware invalidated some of Bard’s
patents based on indefinite claim terms. 9 MedComp argues the patents in this case use
the same or similar claim terms, which means the Federal Circuit’s decision may affect
this case. 10 In opposing MedComp’s motion to stay, Bard argues the AngioDynamics
indefiniteness ruling is irrelevant to this case. Specifically, Bard argues the patent claim
elements in that case differ from those in this case, and MedComp did not raise the
same indefiniteness contentions at issue in AngioDynamics. 11
After briefing on MedComp’s motion to stay was complete, Bard served its expert
rebuttal reports, several of which cited Kelly Powers’ testimony from the AngioDynamics

6

(See Surreply Mot. 2, Doc. No. 1037; SFDM 2–3, Doc. No. 1041.)

7

(See Mot. to Stay, Doc. No. 1029.)

8

No. 1:15-cv-00218 (D. Del. filed Mar. 10, 2015).

9

(See Mot. to Stay 3–4, Doc. No. 1029.)

10

(Id. at 4–8.)

11

(See Bard’s Opp’n to MedComp’s Mot. to Stay 3–7, Doc. No. 1032.)
2

trial. 12 MedComp now seeks to file a surreply in support of its motion to stay, arguing
MedComp should be permitted to address Bard’s inconsistent position (claiming
AngioDynamics is irrelevant while simultaneously relying on trial testimony from that
case). 13 MedComp also seeks to depose Mr. Powers again and to supplement its own
expert reports—all to address Bard’s new reliance on the AngioDynamics testimony. 14
In response, Bard contends its experts only cited to portions of Mr. Powers’
AngioDynamics testimony discussing background information about the development of
power injectable ports which was already included in Mr. Powers’ testimony in this
case. 15 Despite this, Bard represents it has now served amended rebuttal expert
reports which cite other testimony and documents produced in this case rather than Mr.
Powers’ AngioDynamics trial testimony. 16
Bard’s amended reports render MedComp’s motions moot. MedComp bases its
request to file a surreply, to re-depose Mr. Powers, and to supplement its expert reports
on Bard’s rebuttal expert reports’ reliance on AngioDynamics trial testimony. 17 Where
Bard represents it has now served amended reports which do not rely on Mr. Powers’

(See Surreply Mot. 2, Doc. No. 1037; SFDM 2–3, Doc. No. 1041.) Mr. Powers is
listed as an inventor on several Bard patents, including the five at issue in this case.
(See Opp’n to SFDM1, Doc. No. 1043.)
12

13

(See Surreply Mot. 3–5, Doc. No. 1037.)

14

(See SFDM 2–3, Doc. No. 1041.)

(See Opp’n to SFDM 1, Doc. No. 1043; Pls.’ Opp’n to MedComp’s Mot. for Leave to
File Surreply in Supp. of Mot. to Stay (“Opp’n to Surreply Mot.”) 1, Doc. No. 1044.)

15

16

(Opp’n to SFDM 2, Doc. No. 1043; Opp’n to Surreply Mot. 1–2, Doc. No. 1044.)

17

(See generally SFDM, Doc. No. 1041; Surreply Mot., Doc. No. 1037.)
3

AngioDynamics trial testimony, MedComp’s motions lack justification. 18 Accordingly,
based on Bard’s representations, MedComp’s motion for leave to file a surreply and
MedComp’s short form discovery motion are denied as moot. 19
CONCLUSION
Because Bard represents it has served amended rebuttal expert reports which do
not rely on Mr. Powers’ AngioDynamics trial testimony, MedComp’s motion for leave to
file a surreply 20 and MedComp’s short form discovery motion 21 are both denied as moot.
DATED this 25th day of September, 2024.
BY THE COURT:
_______________________________
Daphne A. Oberg
United States Magistrate Judge

MedComp itself suggested amendment of Bard’s reports may moot its motions. (See
SFDM 3, Doc. No. 1041 (“[D]uring the parties’ meet and confer on this issue, MedComp
suggested that Bard simply revise the expert reports to exclude reference to the
AngioDynamics testimony . . . .”).)
18

While MedComp has yet to file a reply in support of its surreply motion, MedComp
requested expedited treatment of this dispute because the relevant expert depositions
begin October 1, 2024. (See id.) And courts have discretion to rule on motions before
a reply is filed. See United States v. Bonilla, No. 23-5096, 2024 U.S. App. LEXIS 9378,
at *4 (10th Cir. Apr. 18, 2024) (unpublished).
19

20

(Doc. No. 1037.)

21

(Doc. No. 1041.)
4