Ferring Pharmaceuticals, Inc. v. Braintree Laboratories, Inc.
Docket: Civil Action No. 13-12553-NMG
Court: District Court, D. Massachusetts; September 26, 2016; Federal District Court
Ferring Pharmaceuticals, Inc. alleges that Braintree Laboratories, Inc. engaged in false advertising and unfair trade practices under the Lanham Act and M.G.L.A. ch. 93A, claiming that Braintree diluted its trademark for Prepopik by implying it shares the same risks as Pico-Salax. In response, Braintree counterclaims that Ferring has also committed false advertising and unfair trade practices. The Court previously dismissed Braintree's trade secret misappropriation claim and some false advertising claims but allowed others to proceed. Currently, Braintree seeks to exclude testimony from three of Ferring's expert witnesses. The Court has denied the motion to exclude Dr. Jeffrey Stec's testimony and deferred the decision on excluding Dr. Gerald Bertiger and Philip Johnson's testimony regarding physician perceptions.
Motions in limine to exclude expert testimony are evaluated under Federal Rule of Evidence 702, which implements the principles established in Daubert v. Merrell Dow Pharmaceuticals, Inc. This rule requires the district court to assess whether: (1) the expert's testimony would aid the trier of fact; (2) the expert is qualified through knowledge, skill, experience, training, or education; (3) the testimony is based on sufficient facts or data; (4) it relies on reliable principles and methods; and (5) the expert reliably applies these methods to the case's facts. The court must exercise caution in its gatekeeping role due to the significant weight juries may give expert opinions, even when the expert lacks firsthand knowledge. Traditional approaches to challenge questionable evidence include vigorous cross-examination and the introduction of contrary evidence. When experts present differing but reliable opinions, the jury, rather than the court, should determine which expert to believe, as disputes over reliable methods pertain to the weight of the testimony, not its admissibility.
Dr. Jeffrey Stec is set to testify as an expert witness on the economic harm caused to Ferring by Braintree's alleged false advertising, using a disgorgement approach rather than a lost profit theory. His analysis employs a multivariate regression to compare actual Braintree sales of Suprep against projected sales without the alleged misconduct. Braintree argues for the exclusion of Dr. Stec's testimony based on Daubert standards, claiming his use of an inverse cubic trend model is unreliable and that he overlooks certain undisputed facts. However, the court recognizes regression analysis as a valid method for establishing causal relationships, and Braintree's criticisms pertain to the weight of the evidence rather than its admissibility. Braintree also contends that key variables, such as the market dynamics of competitor Moviprep and Prepopik, were omitted from Dr. Stec's analysis. Ferring counters that these omissions did not significantly impact the analysis. The court concludes that while these exclusions may reduce the utility of Dr. Stec's testimony to the jury, they do not warrant its exclusion. Consequently, Braintree's motion to exclude Dr. Stec’s testimony is denied.
Ferring plans to call Dr. Gerald Bertiger, a gastroenterologist with 30 years of experience and over 25,000 colonoscopies performed, as an expert witness. He will testify on the material falsity of several promotional materials related to a medical product. Braintree seeks to exclude parts of Dr. Bertiger’s testimony, arguing that it relies on speculation about the perceptions of physicians and lacks sufficient foundation, as he only consulted a limited number of salespersons and doctors familiar with the publications. Braintree's objection specifically targets limited portions of his testimony, not his qualifications or clinical trial insights. The First Circuit Court of Appeals supports the allowance of expert testimony on decision-making in specialized fields, and while the court has a role in ensuring the reliability and relevance of expert testimony, it finds that this determination is more appropriate for trial. Therefore, Braintree's motion to strike Dr. Bertiger’s testimony regarding physician perceptions is denied without prejudice.
Philip Johnson is set to testify as a rebuttal witness for Ferring against Braintree’s market research expert, Robert Klein, who conducted surveys on doctors' beliefs about drug information and Prepopik advertising. Braintree argues that Johnson's testimony, which claims that their comparison detailer suggests Prepopik is unsafe and ineffective, is flawed due to the absence of a control group in Klein's surveys. Braintree also contends that Johnson's testimony is not merely rebuttal but assists Ferring’s case-in-chief. However, these objections are deemed meritless. Johnson, possessing an M.B.A. from the University of Chicago and extensive experience with consumer perception surveys, provides valid expert testimony under Federal Rule of Evidence 702 that challenges Klein’s conclusions. The lack of a control group impacts the weight of Johnson's testimony rather than its admissibility. Braintree's contradictory arguments—claiming Johnson's testimony is both new and improperly rebuttal—are dismissed. The court retains discretion to allow Johnson's testimony and has denied Braintree's motions to exclude the testimonies of both Johnson and other experts, without prejudice.
