215 F. Supp. 3d 114
D. Mass.2016Background
- Ferring (maker of Prepopik) sued Braintree (maker of Suprep) for false advertising under the Lanham Act and unfair trade practices under Mass. Gen. Laws ch. 93A; Braintree counterclaimed similar claims.
- Earlier rulings: the court dismissed some of Braintree’s counterclaims (trade-secret and certain false-advertising theories) but allowed counterclaims relating to “superior cleansing efficacy” and “lowest volume” and Chapter 93A claims to proceed.
- On cross-motions for summary judgment, multiple evidentiary and disclosure disputes arose: motions to strike several witness declarations (including counsel’s), a market-survey, and expert disclosures; plus a renewed motion to unseal documents designated confidential.
- Key contested evidence: declaration by Braintree counsel Phillip Rakhunov summarizing Ferring internal materials; declarations from Braintree employees (Pickering, Meeks); Robert Klein’s third survey on consumer/physician perception; and declarations from Drs. Rex and DiPalma and John McGowan disclosed near the expert-rebuttal deadline.
- Court disposition (in part): denied most of Ferring’s motions to strike (with limited exceptions), denied Braintree’s motion to strike Ferring’s replies, and granted Braintree’s renewed motion to unseal a range of discovery and briefing materials.
Issues
| Issue | Ferring's Argument | Braintree's Argument | Held |
|---|---|---|---|
| Admissibility of declaration by Braintree counsel (Rakhunov) | Declaration contains impermissible opinion, hearsay, and lacks foundation | Statements summarize Ferring documents and fit hearsay exclusions (party admissions/adoptive admissions) | Court denied motion to strike; portions lacking foundation will be disregarded but documents and adoptive admissions are admissible |
| Declarations of Braintree employees (Pickering, Meeks) | Lack foundation; hearsay; some supplemental exhibits lack foundation | Declarations are within personal knowledge and many statements offered for non-hearsay purposes (notice/effect on listener); Pickering can authenticate event photos | Court denied strikes as to most testimony; struck paragraph 5 and Exhibit B of Pickering’s supplemental declaration for lack of foundation; Meeks’ testimony allowed |
| Admissibility/weight of Robert Klein’s third survey | Irrelevant because counterclaims limited to literal falsity; survey is flawed, leading, and should be excluded under Rule 702 | Survey shows misleading implication and materiality of omitted information; relevant to misleading-advertising theory | Court held counterclaims include misleading theories; survey is relevant and challenges go to weight, not admissibility; motion to strike denied |
| Late disclosure of expert declarations (Dr. Rex, McGowan, Dr. DiPalma) | Disclosed after Rule 26 deadline; Ferring seeks exclusion for inadequate disclosure | Witnesses are non-retained actors with firsthand involvement; disclosures were minimal and largely factual; Ferring had notice and opportunity to respond | Court declined to strike declarations; treated witnesses as non-retained experts/fact witnesses and found late disclosure excusable given history and minimal prejudice |
| Ferring’s replies to Braintree’s counterstatements of material facts | N/A (Braintree moved to strike) | Replies exceed Local Rule 56.1 scope and are improper | Court declined to strike the replies (assented-to leave to file) but cautioned it will give scant consideration to improper assertions |
| Braintree’s renewed motion to unseal documents | N/A (Braintree moved to unseal) | Ferring over-designated materials as "highly confidential" without showing particularized harm; public access presumption applies | Court granted motion to unseal; Ferring failed to demonstrate good cause to seal and could redact identifying patient/provider details if needed |
Key Cases Cited
- Hoffman v. Applicators Sales & Serv., Inc., 439 F.3d 9 (1st Cir. 2006) (summary-judgment admissibility requires personal knowledge and competence)
- Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d 9 (1st Cir. 2007) (out-of-court statements may be considered if non-hearsay or within exceptions)
- Woodman v. Haemonetics Corp., 51 F.3d 1087 (1st Cir. 1995) (employee statements can be party admissions)
- United States v. Murphy, 193 F.3d 1 (1st Cir. 1999) (distinguishing hearsay when offered to show effect on listener or context)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (U.S. 1993) (expert evidence admissibility and that shortcomings often go to weight, not admissibility)
- Santiago-Diaz v. Laboratorio Clinico Y De Referencia Del Este, 456 F.3d 272 (1st Cir. 2006) (factors for precluding belated expert testimony)
- Fed. Trade Comm’n v. Standard Fin. Mgmt. Corp., 830 F.2d 404 (1st Cir. 1987) (strong presumption of public access to judicial records; sealing requires compelling reasons)
- Siedle v. Putnam Investments, Inc., 147 F.3d 7 (1st Cir. 1998) (public access presumption and that embarrassment alone is insufficient to seal)