Antitrust Law Daily Wrap Up, TOP STORY: Medical device maker seeks to upset jury verdict in antitrust, false advertising case, (Oct 15, 2013)

By Jeffrey May, J.D.

Becton, Dickinson and Company has asked the federal district court in Marshall, Texas, to reject a jury’s verdict against the medical device manufacturer on attempted monopolization and Lanham Act, false advertising claims or, alternatively, for a new trial. The company filed a renewed motion for judgment as a matter of law or for a new trial on October 11 (Retractable Technologies, Inc. v. Becton, Dickinson and Co., Civil Action No. 2:08-cv-16).

Last month, a jury found in favor of rival Retractable Technologies, Inc. (RTI) on claims that Becton, Dickinson (BD) attempted to monopolize the safety syringe market based on “deception” and that BD engaged in false advertising regarding waste space and needle sharpness. The jury found BD not liable for monopolization of the markets for safety syringes, conventional syringes, or safety IV catheters; for attempted monopolization of the markets for conventional syringes or safety IV catheters; for contractual restraint of trade in any of the markets; or for exclusive dealing in any of the markets. The jury assessed no damages for BD’s alleged anticompetitive contracting, but found BD liable for $113,508,014 in damages for its attempted monopolization through deception regarding safety syringes, according to BD.

RTI has recently moved for additional relief, including an injunction against BD and attorney fees. In addition, RTI has asked the court to reconsider the rejected claim for monopolization of the safety syringe market.

BD contends that RTI failed to present sufficient evidence to support the verdict on the attempted monopolization and false advertising claims. According to BD, the challenged advertising, disparagement, or non-willful patent infringement would not amount to “predatory or exclusionary conduct” for purposes of the attempted monopolization claim. Moreover, RTI purportedly failed to carry its burden of proving damages caused by an antitrust injury. With respect to the Lanham Act claims, BD argues that they are barred by the doctrine of res judicata and based on a release resolving earlier litigation.

The case is Civil Action No. 2:08-cv-16.

Attorneys: Robert A. Atkins (Paul Weiss Rifkind Wharton & Garrison), Alistair B. Dawson (Beck Redden, LLP), and Samuel F. Baxter (McKool Smith, PC) for Becton, Dickinson and Co.

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

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