Vention Advanced Medical Components, Inc. v. Nikolaos D. Pappas and Ascend Medical, Inc., 012816 NHSUP, 2014-CV-00604

Docket Nº:2014-CV-00604
Opinion Judge:RICHARD B. MCNAMARA, PRESIDING JUSTICE.
Party Name:Vention Advanced Medical Components, Inc., d/b/a Advanced Polymers v. Nikolaos D. Pappas and Ascend Medical, Inc.
Case Date:January 28, 2016
Court:Superior Court of New Hampshire
 
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Vention Advanced Medical Components, Inc., d/b/a Advanced Polymers

v.

Nikolaos D. Pappas and Ascend Medical, Inc.

No. 2014-CV-00604

Superior Court of New Hampshire

January 28, 2016

UNPUBLISHED OPINION

MERRIMACK, SS

ORDER

RICHARD B. MCNAMARA, PRESIDING JUSTICE.

Two discovery disputes are pending before the Court. First, the parties dispute whether or not certain employees of the Plaintiff, Vention Advanced Medical Components Inc., d/b/a Advanced Polymers ("Advanced Polymers"), are expert witnesses within the meaning of RSA 516:29-b, so that they are required to provide expert reports. Second, Advanced Polymers moves to compel answers to Interrogatories 1 through 7 and Requests for Production 1 through 4, which in substance, require Defendants, Nikolaos D. Pappas and Ascend Medical, Inc., to specify the documents upon which they rely to support their claim and counterclaim that Advanced Polymers' supposed trade secret is not a trade secret at all, but is easily ascertainable from documents in the public domain.

On January 8, 2016, Advanced Polymers also sought a status conference to discuss the expert witness dispute by letter brief in accordance with Business Court Standing Order 10. Defendants responded, Plaintiff replied, and a hearing was held on January 22, 2016, after which the parties agreed that the Court could decide the substantive issue raised by the parties' letter briefs in order to advance the conduct of the litigation. For the reasons stated in this Order, the Court orders that Plaintiff shall provide an expert disclosure from Mark Saab with respect to Subject 8 and Subject 14 of Plaintiff's identification of Mark Saab as a non-retained expert, filed on December 11, 2015, to the extent his testimony with respect to area number 14 involves "testimony concerning those topics concerning defendant." Similarly, Mr. Testa and Mr. Girarde, other employee expert witnesses disclosed by Advanced Polymers, must provide expert reports within the meaning of RSA 516:29-b if they opine regarding the Defendant's costs involved in developing and marketing its products and its profit margin, as explained in the body of this Order.

Advanced Polymers sought a status conference to discuss the interrogatories and request for production at issue by letter brief dated December 2, 2015. After a status conference on December 22, 2015, the parties briefed the issue and agreed that the Plaintiffs opening letter brief would be treated as a Motion to Compel. For the reasons stated in this Order, the Motion to Compel is GRANTED and Defendants shall answer the Interrogatories and Requests for Production referenced in the letter brief.

I

This case involves a claim by the Plaintiff that the Defendant Nikolaos Pappas, a former employee of Plaintiff, is utilizing trade secrets to which he was given access during his employment by Plaintiff. Both parties agree that RSA 516:29-b is applicable to disclosure of expert testimony to be produced in this case. RSA 516:29-b, II provides in relevant part:

Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report signed by the witness.

On December 9, 2016 the parties stipulated that:

With respect to any person any party may use at trial to present evidence under New Hampshire rules of evidence 702, 703 or 705 who is not required to provide a report pursuant to RSA 516:29-B, each party shall identify each person who may provide such testimony and shall also identify the topics that such person may testify about as a possible expert. Plaintiff shall provide such disclosures on or before December 11, 2015 and defendant shall provide such disclosures on or before January 29, 2016.

On the date set for Advanced Polymer's expert disclosures, December 11, 2015, Plaintiff provided written expert reports for retained experts and provided written disclosures identifying the subject matter that identified individuals employed by Plaintiff might testify about. Saab's disclosure indicated that he would likely testify about a number of topics, including confidential and trade secret information developed and used by Advanced Polymers with respect to the manufacture of medical balloons and heat shrink tubing and analysis of how Defendants' processes and equipment and raw materials are based on confidential trade secret or proprietary information of Advanced Polymers. A total of 15 topics were identified for Saab.

On the January 8, 2016, Defendants' counsel suggested to Plaintiff's counsel that Saab could not provide testimony that commented on Defendants' processes or information received from Defendants because he had not prepared an expert report. At oral argument, counsel for Defendants asserted that he believed that counsel for Plaintiff had a made tactical decision to evade the plain meaning of the statute. Plaintiff denied this claim and stated that he believed the statute provided specifically that expert reports were not necessary for Advanced Polymer employees who would be testifying as expert witnesses, but that he had proposed the disclosure scheme in an abundance of caution to insure that all parties had appropriate discovery. He pointed out that although the disclosure was provided on December 11, 2015, counsel for the Defendants never raised the claim that an expert report should be provided for almost a month, which, at the very least, suggests that defense counsel did not believe there was...

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