Antitrust Law Daily Wrap Up, ANTITRUST—D. Colo.: Medical device producer allowed to supplement expert report in monopolization suit, (Nov 5, 2015)

By Greg Hammond, J.D.

In an action by a producer of a medical bone mill against medical device company Medtronic for allegedly attempting to monopolize the market for mechanical bone mills used in spinal fusion surgery, the producer was granted leave to supplement an expert report that was deemed untimely. The federal district court in Denver determined that the supplemented report would not substantially harm Medtronic, and any harm that does exist could be ameliorated through an additional deposition (Lenox MacLaren Surgical Corp. v. Medtronic, Inc., November 5, 2015, Wang, N.).

Lenox MacLaren Surgical Corp. developed and produced a medical bone mill for use in spinal fusion surgery. In 2000, the company entered a five-year exclusive supply and license agreement with Medtronic, Inc., under which Medtronic had exclusive rights to market the mill to hospitals and surgeons for one year. After the license agreement expired, another Medtronic subsidiary began selling a pneumatic bone mill attachment in competition with the Lenox bone mills. In addition, Medtronic initiated a voluntary recall of the Lenox mills. An arbitration panel found in Lenox's favor on an intentional interference with prospective business relations claim brought against Medtronic over the recall.

Lenox then filed suit against Medtronic, alleging attempted monopolization in violation of Section 2 of the Sherman Act. After the date the final pretrial order was to be submitted, Lenox moved for leave to supplement one of its expert’s reports. Medtronic moved to strike the supplemental report.

The court determined that the expert’s amended report constitutes supplementation based on corrected information, as opposed to an improper attempt to use Federal Rule of Civil Procedure 26(e) to include additional opinions or strengthen existing expert opinions. Although the report was deemed untimely, given that discovery was closed for two months and the time for filing the final pretrial order had passed, Medtronic failed to show any substantive harm, the court concluded. Medtronic’s own expert had already examined the documents at issue in the amended report, and the resulting supplementation favored Medtronic because it reduced the amount of market share supposedly held by Medtronic and eliminated a year from the period in which Medtronic was alleged to have monopoly power.

Lenox’s motion for leave to supplement the expert report was therefore granted, and Medtronic’s motion to strike the supplemental expert report was denied. Nevertheless, to ameliorate any harm to Medtronic, the court ordered that Lenox make the expert available for further deposition, which cannot last longer than 90 minutes and must be completed by November 30, 2015.

The case number is 10-cv-021390MSK-NYW.

Attorneys: Stanley M. Gibson (Jeffer, Mangels, Butler & Marmaro, LLP) for Lenox MacLaren Surgical Corp. Catherine Fairley Spillman (Akin, Gump, Strauss, Hauer & Feld, LLP) for Medtronic, Inc., Medtronic Sofamor Danek, Inc., Medtronic PS Medical, Inc., and Medtronic Sofamor Danek Co., Ltd.

Companies: Lenox MacLaren Surgical Corp.; Medtronic, Inc.; Medtronic Sofamor Danek, Inc.; Medtronic PS Medical, Inc.; Medtronic Sofamor Danek Co., Ltd.

Cases: Antitrust ColoradoNews