Antitrust Law Daily Wrap Up, ANTITRUST—EDTex: Expert on Supply Chain Can Testify in Dispute Between Medical Device Makers, (Apr 17, 2013)

By Jeffrey May, J.D.

In an antitrust and false advertising suit brought by Retractable Technologies, Inc. (RTI), a manufacturer of hypodermic products, the federal district court in Marshall, Texas, has denied the request of defending medical device company Becton Dickinson and Company (BD) to exclude one of the plaintiff's experts (Retractable Technologies, Inc. v. Becton Dickinson and Co., April 16, 2013, Payne, R.).

RTI alleges that BD violated federal and Texas state antitrust law and engaged in false advertising in violation of the Lanham Act, among other claims. RTI proposed to introduce an expert to testify on "the health care supply chain based on his industry knowledge of Group Purchasing Organizations (‘GPOs’) and their role within healthcare supply sales." The expert would likely offer general testimony about the role and purpose of GPOs in the healthcare supply chain, and explain the effects of different GPO contracting practices. BD objected to the expert's proposed testimony on several grounds.

The court rejected BD's assertions that the testimony would not be relevant because it did not relate to BD, RTI, needles, syringes, or IV catheters. According to the court, testimony regarding GPOs and the operation of the healthcare supply chain was likely to be relevant and helpful to the jury.

Also rejected was BD's argument that the expert lacked the experience necessary to testify on the supply chain. BD argued that the expert's experience was limited to the "capital equipment" segment (such as ultrasound machines and CT scanners), and therefore his experience and opinions do not apply to the "consumables" segment (needles, syringes, and IV catheters, etc.). The court noted that GPOs contract with suppliers and members in both segments simultaneously, and BD did not point to any evidence showing that GPO practices were materially different between these segments such that the expert's observations and opinions would be inapplicable to the consumables segment. BD would be free to cross-examine the expert on this issue.

BD could also cross-examine the expert with respect to its concerns that the expert relied on articles that were "outside the relevant time period governing this lawsuit, and do not relate to BD, the products at issue, or the contracts at issue." Although some of the evidence might be relevant to claims barred by res judicata, it could not be said that the evidence was entirely irrelevant to claims at issue in the present dispute, the court noted. In addition, the court did not reject the expert on the ground that his opinions were not subject to peer review or publication. The expert’s opinions were sufficiently reliable to permit his testimony, in the court’s view.

The case is No. 2:08-CV-16-LED-RSP.

Attorneys: Bradley Carroll Weber (Locke Lord LLP) for Retractable Technologies, Inc. Robert A. Atkins (Paul Weiss Rifkind Wharton & Garrison) for Becton Dickinson and Co.

Companies: Retractable Technologies, Inc.; Becton Dickinson and Co.

Cases: Antitrust Advertising TexasNews