Ameritox, Ltd. v. Millennium Health, LLC

Filing 407

ORDER re #389 Notice by Defendant Millennium Health, LLC Regarding Ameritox's Admissions From Prior Litigation Relevant to Commercial Success(Other), filed by Millennium Health, LLC. Signed by District Judge William M. Conley on 4/14/2015. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
AMERITOX, LTD., and
MARSHFIELD CLINIC,
Plaintiffs,

ORDER

v.
MILLENNIUM HEALTH, LLC.

13-cv-832-wmc

Defendant.
The court is in receipt of the parties’ respective submissions on Millennium’s and
plaintiffs’ proposed statements regarding prior litigation for the jury’s consideration
during the damages phase of the trial.1 (Dkt. ##389, 390.) Millennium specifically
submits two proposed statements as to the limited value of the range-based results in
Ameritox’s Guardian Rx product, containing purported admissions by Ameritox in (1)
the false advertising case in the District of Maryland and (2) the deceptive trade practices
case in the District of Florida. Millennium asserts that both statements will assist in the
jury’s consideration of the commercial success factor of the patented invention in
determining a reasonable royalty.
After review of the support cited by Millennium in its motion, however, the court
finds no such legally binding admissions in either case. Accordingly, the court declines to
provide any statement to the jury that Ameritox previously disavowed the value of the
patented invention in its own product.

1

Plaintiffs confirm that they do not intend to introduce any evidence related to
commercial success during Phase I of the trial. (Pls.’ Submission (dkt. #390) 2.)

As an initial matter -- and to the extent the court understands it -- the false
advertising case concerned a statement that Ameritox’s product could help physicians
determine their patients’ compliance with prescribed dosage, among other related
advertising claims.

As the court previously found, in rejecting Millennium’s claim

construction, the patented invention is not limited to quantifying the specific dose taken
by a patient. With that overarching point in mind, the evidence cited by Millennium
offers insufficient support for its proposed statement.
First, Millennium points to the deposition testimony of Lori Overstreet, corporate
representative of Ameritox, designated to testify in the false advertising case about
market research or consumer surveys, among other topics. In that deposition, Overstreet
was asked about the Ameritox’s most recent physician survey. (Overstreet Depo. (dkt.
#249) 140.) In response to a question about whether doctors believe there are any
points of differentiation between Ameritox and its competitors, Overstreet first qualified
her testimony by noting that she would have to look at the specific research, but then
testified that “there were no differences between any of the competitors and Ameritox.”
(Id. at 141.) Millennium relies on this testimony in sole support of a proposed statement
to the jury that: “In prior litigation between the parties, Ameritox denied that rangebased results influenced customer purchasing decision.” (Def.’s Submission (dkt. #389)
2.) Not only is this specific finding a stretch from Overstreet’s answer to a much broader
question, but Ameritox directed the court to the research results, which Overstreet
testified she would need to review before giving an unqualified response -- and which
states that the only point of differentiation between Ameritox and its competitors is “the
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ability to show whether patients are taking too much or too little medication.” (Pls.’ Ex.
182.)
Second, Millennium cites to testimony in the false advertising case by Ameritox’s
damages expert, who criticized the conclusion of Millennium’s expert that Ameritox’s
advertising of a physician’s ability to tell if his or her patients are taking too much or too
little medication affected 19% of Ameritox’s customers. (Def.’s Submission (dkt. #389)
2 (citing Rebuttal Report of R. Bruce Den Uyl (dkt. #360-22) 12-13).)

While

Ameritox’s expert certainly down-played the role of this factor -- as compared to other
surveyed factors -- his testimony is also too attenuated to bind Ameritox to a blanket
representation that its customer research was unable to determine if a customer’s
purchasing decision was affected by whether its product could tell if a patient took too
much or took little medication. This is especially true in light of other research cited by
Ameritox and summarized above that this factor was the sole distinguishing feature for
customers.
Third, Millennium points to Ameritox’s allegations in counterclaims in that
lawsuit, which assert that turnaround time and confirmation methodology were factors in
customer purchasing decisions.

(Millennium’s Submission (dkt. #389) 3 (citing

Ameritox’s Counterclaims (dkt. #129-8) ¶¶ 30, 40).)

Notably, the counterclaims

actually allege that each of these were “a” factor, which plainly does not constitute a
disavowal of the value of Ameritox’s range-based results.2

2

Millennium also seeks to introduce Ameritox’s counterclaims challenging Millennium’s
own advertising and the court’s order on those claims (Def.’s Submission (dkt. #389) 3),
but the court sees no basis for how Millennium’s advertising would impact the jury’s
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Fourth, Millennium relies on deposition testimony of Todd Gardner, a corporate
representative in the false advertising case, that Ameritox’s differentiation, from his
perception, is “our customer service, which Rx Guardian, as I stated, is part of that.”
(Gardner Depo. (dkt. #235) 110.) This, too, is no admission of the lack of value of the
patented invention in Ameritox’s commercial success. To the contrary, Gardner testified
that part of its customer service is the product itself.
Finally, Millennium proposes that the court advise the jury that “Ameritox’s
damages expert” in the Florida deceptive trade practices action, “opined that in
conducting research into the reasons for lost customers, Ameritox had identified two top
reasons for customer departures that have no relation to the graphed results.” (Def.’s
Submission (dkt. #389) 4.) While this description appears consistent with a statement
in the cited expert report, it does not support a statement that Ameritox’s use of the
patented invention in its product is not of value (or of limited value) in light of other
features driving customer demand of that product.
Still, this opinion may be relevant to whether the patented invention drove sales
of Millennium’s product -- factor 13 of the Georgia-Pacific factors -- just as other, specific
testimony and allegations described by the court above may be relevant if not inflated
into something more that was actually stated or reduced into a fairly meaningless
statement as plaintiffs propose. Accordingly, without describing the nature of any specific
litigation, the court will permit Millennium to use actual, unqualified testimony of

determination of the commercial success of Ameritox’s embodiment of the patented
invention.
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corporate designees or allegations of Ameritox in “other litigations” for impeachment or
other legitimate purposes, including refreshing recollection or if relied upon by experts in
previously disclosed reports. If disputed, the court will also consider admission of more
narrowly and carefully crafted quotes into evidence as statement of a party opponent if
consistent with this opinion.
Entered this 14th day of April, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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