American Sales Company, LLC v. Pfizer, Inc. et al

Memorandum in Support re MOTION in Limine No. 8 to Preclude Speculative Arguments or References Regarding Defendants' Legal Strategy

E.D. Va.September 15, 2017

1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION IN RE CELEBREX (CELECOXIB) ANTITRUST LITIGATION This document relates to: Direct Purchaser Actions Lead Case No. 2:14-cv-00361 DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION IN LIMINE NO. 8 TO PRECLUDE SPECULATIVE ARGUMENTS OR REFERENCES REGARDING DEFENDANTS’ LEGAL STRATEGY Defendants Pfizer Inc., G.D. Searle LLC, and Pfizer Asia Pacific Pte., Ltd. (collectively “Pfizer”) respectfully move this Court for an in limine order excluding from trial speculative arguments about, or references to, Pfizer’s legal strategy in patent prosecution and litigation to enforce its patents associated with Celebrex, including Pfizer’s decision not to submit a declaration from Joseph Bulock in the prosecution of its relevant reissue patent. PRELIMINARY STATEMENT Without any basis in the record, Plaintiffs have resorted to speculation as to the nature of Pfizer’s legal strategy with respect to the reissue application, in an effort to suggest that Pfizer’s decisions were made as part of a deliberate effort to mislead or defraud the PTO. But the law is clear that groundless speculation of this type is completely lacking in probative value and unduly prejudicial, and has no place at trial. For these reasons, Plaintiffs should be precluded from speculating about the reasons behind Pfizer’s legal strategy in all forms, including any attempt by Plaintiffs to offer any testimony—including improper expert testimony—or argument speculating as to the reasons Pfizer did not submit a declaration from Joseph Bulock to the PTO during Pfizer’s prosecution of U.S. Patent No. RE44,048 (the “RE048 patent”). Case 2:14-cv-00361-AWA-DEM Document 504 Filed 09/15/17 Page 1 of 9 PageID# 38584 2 RELEVANT FACTS Joseph Bulock, a former patent attorney for Pfizer,1 prosecuted the patent applications with the PTO in the early and mid-1990’s that eventually gave rise to the RE048 patent. See ECF No. 347-1 at DPCP-002273; ECF No. 345-2 at DCPC-000918; ECF No. 185 ¶ 87. He was, however, no longer a Pfizer employee by the time Pfizer filed and began to work on the reissue application. (See Declaration of Farrah R. Berse (“Berse Decl.”) Ex. 8 at 19:14-18, 209:14-18.) An email chain from March 2010 suggests that Pfizer’s attorneys contemplated submitting a declaration from Mr. Bulock in connection with the prosecution of the reissue application. (See Berse Decl. Ex. 9.) The senders of emails in the chain were all Pfizer attorneys who either oversaw Pfizer’s patent prosecution activities or were directly involved in prosecuting the reissue application.2 Other recipients of the email chain were also attorneys, either in-house or outside counsel, who were either involved with Pfizer’s patent prosecution activities in the U.S. and/or Europe or were specifically involved in prosecuting the reissue application.3 The subject line of the email chain reads: “Re: Celebrex Reissue Proceeding---Draft Declaration for Joe Bulock.” (See Berse Decl. Ex. 9.) All substantive content of the emails was redacted for privilege.4 The unredacted portion involves only the logistics for setting up a group phone call. Id.5 1 Mr. Bulock was an attorney for G.D. Searle LLC, a Pfizer subsidiary and co-defendant in these actions. 2 These include Gregg Benson, Bryan Zeilinski, and Scott Williams. (See Berse Decl. Ex. 10 at 35:23–36:5;) (Berse Decl.1 at 20:7-15, 21:9-23.) 3 These include Roy Waldron, Keith Motion, Graham Lane, Philip Polster, Dean Olson, and Daniel Reisner. (See Berse Decl. Ex. 1 at 20:7-15, 21:9–23:2;) (Berse Decl. Ex. 11 at 27:7– 28:25;) (Berse Decl. Ex. 7 at 17:14–18:4, 18:24–19:7.) 4 Plaintiffs did not challenge these redactions or make any motion during the discovery period seeking to limit such redactions. 5 The only other evidence in the record regarding this issue is a read receipt sent by Keith Motion on February 26, 2010 with a subject line that read “Read: Draft Joe Bulock Declaration.” (See Case 2:14-cv-00361-AWA-DEM Document 504 Filed 09/15/17 Page 2 of 9 PageID# 38585 3 Plaintiffs’ counsel deposed Mr. Bulock—who was not copied on any part of the email chain—as well as several of the email recipients. Not one of these witnesses testified that they recalled Mr. Bulock ever being asked whether he would sign such a declaration. (See Berse Decl. Ex. 1 at 103:11–104:4;) (Berse Decl. Ex. 7 at 139:14-21.) In fact, Mr. Bulock testified that he was not asked to prepare or sign a declaration for the prosecution of the reissue application. (See Berse Decl. Ex. 8 at 212:21–213:6.) Nonetheless, and in the absence of any evidence whatsoever, Plaintiffs’ expert Thomas J. Kowalski speculates in his report that a draft declaration was prepared and that the reason it was not filed with the PTO is because “Mr. Bulock did or would not agree with Pfizer’s theory(ies) justifying reissue of the ‘068 patent, . . . .” See Berse Decl. Ex. (Kowalski Rep.) at ¶ 88 (emphasis added).6 Mr. Kowalski goes on further to speculate: A reasonable Examiner and the TQASs who made temporary appearances in the prosecution of the ‘319 application, in my mind, would have found that there was such a draft Declaration and that it was not executed and the reason(s) therefor to have been material. That there was such a draft Declaration and that neither it nor its contents nor the reason(s) why it was not executed and filed in the ‘319 application prosecution, to me, indicates that there was material information withheld from the USPTO (and from the litigants and Court in this action as it does not seem to have been produced). Id. (emphases added).7 Berse Decl. Ex. 1 at 101:19 – 103:2;) (see also Berse Decl. Ex. 12.) 6 Pfizer has moved for the exclusion of Mr. Kowalski’s improper testimony under Rule 702 of the Federal Rules of Evidence (Defs.’ Mot. to Exclude the Declarations and Testimony of Plaintiffs’ Patent Law Experts, D.I. 334) and Rules 401, 402, and/or 403 of the Federal Rules of Evidence (Defs.’ Mot. in Limine No. 3 to Preclude Certain Categories of Patent Law Expert Testimony). 7 In other deposition transcripts, Plaintiffs also speculate that another reason why no declaration from Mr. Bulock was submitted as part of the reissue application is that Mr. Bulock might have been irritated that Pfizer attorneys were contacting him and he stopped responding to them. (See Berse Decl. Ex.8 at 215:18-25.) This, too, is pure speculation with no basis in the record and should likewise be excluded. Case 2:14-cv-00361-AWA-DEM Document 504 Filed 09/15/17 Page 3 of 9 PageID# 38586 4 ARGUMENT Any speculation as to the reasons Mr. Bulock did not submit a declaration during prosecution of the reissue application is irrelevant and unduly prejudicial. The law is very clear that speculation is not relevant evidence and has no proper place at a trial. This is both common- sense and long-standing evidentiary law: “the essential requirement is that mere speculation be not allowed to do duty for probative facts.” See Galloway v. U.S., 319 U.S. 372, 395 (U.S. 1943); see also Atl. Coast Line R.R. Co. v. Collins, 235 F.2d 805, 808 (4th Cir. 1956) (“[S]peculation is not enough.”). “[S]peculation and conjecture unsupported by evidence in the record” cannot be used to establish findings of fact. See Evans v. Mentor Corp., Case No. 1:04CV1218, 2005 WL 1667661, at *2-*3 (E.D. Va. June 28, 2005). Plaintiffs’ speculation about the decision not to submit a declaration from Mr. Bulock has no foundation in the evidence. Indeed, the only evidence (and, to be clear, Defendants do not move to preclude the evidence, just speculation), is that Pfizer attorneys exchanged emails with a subject line referring to a “Draft Declaration For Joe Bulock,” that an email sent from Keith Motion in February 2010 had a subject line that read “Read: Draft Joe Bulock Declaration,” and that no such declaration was ultimately submitted. (See Berse Decl. Ex. 9;) (Berse Decl. Ex. 12.) That is the sum total of the evidence on this point. Despite this, Plaintiffs have speculated that Mr. Bulock did not submit a declaration to the PTO when Pfizer was prosecuting the reissue application because he did not agree with the statements Pfizer’s attorneys advanced during the prosecution. Kowalski Rep. at ¶ 88. This is the most prejudicial type of speculation that could be offered. Not only is it entirely unsupported by the evidence, but it suggests, without any basis, that Pfizer’s legal strategy was formulated in bad faith—a central issue in this case. Thus, even if speculation as to the reasons had some Case 2:14-cv-00361-AWA-DEM Document 504 Filed 09/15/17 Page 4 of 9 PageID# 38587 5 probative value—which it does not—that value would be significantly outweighed by its potential to unduly prejudice Pfizer, waste time, and confuse the issues at trial. Moreover, if Plaintiffs’ counsel is allowed to offer its speculation—whether from Mr. Kowalski or through arguments at trial—it would distract the jury from focusing on the actual evidence and, instead, focus them on Plaintiffs’ counsel’s and Plaintiffs’ expert’s argument that Pfizer made a decision to withhold information from the PTO in bad faith. Not only is that prejudicial, but any time Plaintiffs spend pursuing this speculation during trial will be wasted time, as will any time Pfizer must spend to rebut it, because, at the end of the day, speculation is simply not relevant. For these reasons, Plaintiffs should be precluded from offering such speculative arguments or testimony at trial under Rules 402 and 403. Case 2:14-cv-00361-AWA-DEM Document 504 Filed 09/15/17 Page 5 of 9 PageID# 38588 6 CONCLUSION For all the foregoing reasons, Pfizer respectfully requests that the Court grant its Motion in Limine No. 8 to exclude from trial speculative arguments about, or references to, Pfizer’s legal strategy, including Pfizer’s decision not to submit a declaration from Joseph Bulock in the prosecution of the RE048 patent. Dated: September 15, 2017 Respectfully submitted, /s/Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624-3000 Facsimile: (888) 360-9092 senoona@kaufcan.com Dimitrios T. Drivas (pro hac vice) Raj S. Gandesha (pro hac vice) Adam Gahtan (pro hac vice) Sheryn George (pro hac vice) Vanessa Park-Thompson (pro hac vice) WHITE & CASE LLP 1221 Avenue of the Americas New York, NY 10020 Telephone: (212) 819-8200 Facsimile: (212) 354-8113 ddrivas@whitecase.com rgandesha@whitecase.com agahtan@whitecase.com sgeorge@whitecase.com vanessa.park-thompson@whitecase.com Case 2:14-cv-00361-AWA-DEM Document 504 Filed 09/15/17 Page 6 of 9 PageID# 38589 7 John F. Baughman (pro hac vice) Farrah R. Berse (pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 Facsimile: (212) 492-0008 jbaughman@paulweiss.com fberse@paulweiss.com Attorneys for Defendants Pfizer Inc., G.D. Searle LLC, and Pfizer Asia Pacific PTE, Ltd. Case 2:14-cv-00361-AWA-DEM Document 504 Filed 09/15/17 Page 7 of 9 PageID# 38590 1 CERTIFICATE OF SERVICE I hereby certify that on September 15, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will automatically send notice of electronic filing (NEF) to all registered users listed below: Dimitrios T. Drivas (pro hac vice) Adam Gahtan (pro hac vice) Brendan G. Woodard (pro hac vice) Raj S. Gandesha (pro hac vice) Sheryn George (pro hac vice) Vanessa Park-Thompson (pro hac vice) WHITE & CASE LLP 1221 Avenue of the Americas New York, NY 10020 Telephone: (212) 819-8200 ddrivas@whitecase.com rmilne@whitecase.com bwoodard@whitecase.com rgandesha@whitecase.com sgeorge@whitecase.com John Baughman (pro hac vice) Farrah R. Berse (pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 Facsimile: (212) 492-0008 jbaughman@paulweiss.com fberse@paulweiss.com Counsel for Defendants Pfizer Inc., G.D. Searle LLC, and Pfizer Asia Pacific PTE, Ltd. Richard S. Glasser (VSB No. 04092) Michael A. Glasser (VSB No. 17651) William H. Monroe, Jr. (VSB No. 27441) Kip A. Harbison (VSB No. 38648) Marc C. Greco (VSB No. 41496) Melissa M. Watson Goode (VSB No. 73516) GLASSER & GLASSER, P.L.C. Crown Center, Suite 600 580 East Main Street Norfolk, VA 23510 Telephone: (757) 625-6787 Facsimile: (757) 652-5959 richardg@glasserlaw.com michael@glasserlaw.com bill@glasserlaw.com kip@glasserlaw.com marcg@glasserlaw.com mgoode@glasserlaw.com Local Counsel to Direct Purchaser Plaintiffs and the Proposed Class Linda P. Nussbaum (pro hac vice) Bradley J. Demuth (pro hac vice) NUSSBAUM LAW GROUP, P.C. 570 Lexington Avenue, 19th Floor New York, NY 10022 Telephone: (212) 722-7053 lnussbaum@nussbaumpc.com bdemuth@nussbaumpc.com Juan R. Rivera Font JUAN R. RIVERA FONT LLC Ave. González Guisti #27, Suite 602 Guaynabo, PR 00968 Telephone: (787) 751-5290 juan@riverafont.com Case 2:14-cv-00361-AWA-DEM Document 504 Filed 09/15/17 Page 8 of 9 PageID# 38591 2 Counsel for Plaintiff Cesar Castillo, Inc. and the Proposed Class Thomas M. Sobol (pro hac vice) David S. Nalven (pro hac vice) Kristen A. Johnson (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA 02142 Telephone: (617) 482-3700 Facsimile: (617) 482-3003 tom@hbsslaw.com davidn@hbsslaw.com kristenj@hbsslaw.com John D. Radice (pro hac vice) A. Luke Smith (pro hac vice) Kenneth Pickle (pro hac vice) RADICE LAW FIRM, P.C. 34 Sunset Blvd Long Beach, NJ 08008 Telephone: (646) 245-8502 Facsimile: (609) 385-0745 jradice@radicelawfinn.com lsmith@radicelawfinn.com kpickle@radicelawfinn.com Counsel for Plaintiff American Sales Company, LLC and the Proposed Class David F. Sorensen (pro hac vice) Zachary D. Caplan (pro hac vice) BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 dsorensen@bm.net zcaplan@bm.net Peter Kohn (pro hac vice) Joseph T. Lukens (pro hac vice) FARUQI & FARUQI, LLP 101 Greenwood Avenue, Suite 600 Jenkintown, PA 19046 Telephone: (215) 277-5770 Facsimile: (215) 277-5771 pkohn@faruqilaw.com jlukens@faruqilaw.com Barry Steven Taus (pro hac vice) Archana Tamoshunas (pro hac vice) TAUS, CEBULASH & LANDAU LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Telephone: (212) 931-0704 Facsimile: (202) 931-0703 btaus@tcllaw.com atamoshunas@tcllaw.com Counsel for Plaintiff Rochester Drug Co-Operative, Inc. and the Proposed Class /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624-3000 Facsimile: (888) 360-9092 Case 2:14-cv-00361-AWA-DEM Document 504 Filed 09/15/17 Page 9 of 9 PageID# 38592