AngioDynamics, Inc. v. C.R. Bard
| Decision Date | 08 July 2022 |
| Docket Number | 1:17-cv-598 (BKS/CFH) |
| Parties | ANGIODYNAMICS, INC., Plaintiff, v. C.R. BARD, INC. and BARD ACCESS SYSTEMS, INC., Defendants. |
| Court | U.S. District Court — Northern District of New York |
For Plaintiff: Philip J. Iovieno, Helen M. Maher, Amanda L Devereux, Kristen J. McAhren, Mark A. Singer, Justin Arborn Cadwalader, Wickersham & Taft LLP.
For Defendants: Andrew J. Frackman, Mark Racanelli, Pamela A Miller, Sergei Zaslavsky, O'Melveny & Myers LLP Robert A. Atkins, Jacqueline P. Rubin, William B. Michael, Daniel A. Crane, James P. Nonkes Harris Beach PLLC.
I. INTRODUCTION
Plaintiff AngioDynamics, Inc. brings this antitrust action against Defendants C.R. Bard, Inc. and Bard Access Systems, Inc. (collectively, “Bard”), asserting a claim of illegal tying in violation of Section 1 of the Sherman Act (codified at 15 U.S.C. § 1) under “per se” and “rule of reason” theories of liability. (Dkt. No. 1); see AngioDynamics, Inc. v. C.R. Bard, Inc., 537 F.Supp.3d 273 (N.D.N.Y. 2021) (summary judgment decision). The case is set for trial to begin on September 19, 2022. Presently before the Court are the parties' motions in limine (Dkt. Nos. 255, 260, 262-68, 270-74, 277, 279, 280) and motions to seal (Dkt. Nos. 281, 282, 305, 308, 318, 324). The Court heard oral argument on the motions at the final pretrial conference on July 6, 2022. For the following reasons, the parties' motions are granted in part and denied in part.
II. STANDARD OF REVIEW FOR EXPERT TESTIMONY
Under Rule 702 of the Federal Rules of Evidence, the Court is charged with a “gatekeeping” obligation with respect to expert testimony: the trial judge must ensure “that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. “To determine whether a witness qualifies as an expert, courts compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony.” United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004). While courts liberally construe the expert qualifications requirement, an expert is “reasonably confined to his subject of expertise.” Bunt v. Altec Indus., Inc., 962 F.Supp. 313, 317 (N.D.N.Y. 1997) (citation omitted).
“Under Daubert, factors relevant to determining reliability include the theory's testability, the extent to which it has been subjected to peer review and publication, the extent to which a technique is subject to standards controlling the technique's operation, the known or potential rate of error, and the degree of acceptance within the relevant scientific community.” Restivo v. Hessemann, 846 F.3d 547, 575-76 (2d Cir. 2017) (internal quotation marks and citation omitted). The reliability inquiry is “a flexible one,” Daubert, 509 U.S. at 594, and the factors to be considered “depend[ ] upon the particular circumstances of the particular case at issue.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999). When applying the gatekeeping obligation to non-scientific testimony, a district court may choose to utilize some or all of the above Daubert factors, or it may look to other indicia of reliability. Id.
“In undertaking this flexible inquiry, the district court must focus on the principles and methodology employed by the expert, without regard to the conclusions the expert has reached or the district court's belief as to the correctness of those conclusions.” Amorgianos v. Natl. R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002). “Thus, when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony.” Id. In other words, “[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). “Frequently, though, ‘gaps or inconsistencies in the reasoning leading to [the expert's] opinion . . . go to the weight of the evidence, not to its admissibility.'” Restivo, 846 F.3d at 577 (quoting Campbell ex rel. Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2d Cir. 2001)).
Ultimately, a district court has “the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire, Ltd., 526 U.S. at 142 (citing Gen Elec. Co., 522 U.S. at 143). Moreover, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. With this framework in mind, the Court addresses the parties' arguments for exclusion of certain expert opinions.
III. ANGIODYNAMICS'S MOTIONS IN LIMINE
Sandra C. Sucy, R.N., M.S.N., VA-BC, is a registered nurse who has more than 25 years of experience in placing peripherally inserted central catheters (“PICCs”) in a clinical setting and who has worked for Bard full-time since 2008. (Dkt. No. 136-3, ¶¶ 1, 8; see generally Dkt. No. 136-3 (Sucy expert report)). Ms. Sucy opines in her expert report dated February 14, 2020 that pairing Bard's Tip Location System (“TLS”) stylets with AngioDynamics's BioFlo PICCs would be “sub-optimal” because such an approach (1) “creates a risk of breaking sterility,” (2) “creates a risk of damaging the Bard TLS stylet,” and (3) “compromises the Bard Clinical Specialist's ability to provide guidance to the clinician placing the PICC.” (Id. ¶ 55). At her deposition on April 21, 2022, Ms. Sucy testified that the risk of damaging a stylet would be “even greater if the clinician were attempting to load a Bard TLS Stylet into a valved PICC.” (Dkt. No. 255-3, at 8).
She explained that a valve is a “danger to the stylet” because it is a hard surface, enclosed in the lumen, that the clinician cannot see. (Id. (“I'm just going in there blindly pecking at it.”)). When questioned about whether this was based on her personal experience, Ms. Sucy stated that two days prior to her deposition she attempted to pair a Bard TLS stylet with a valved BioFlo PICC, her first such attempt. (Id. at 8-9; see id. at 9 ()). AngioDynamics moves to preclude Ms. Sucy from testifying about her attempt to pair a Bard TLS stylet and a BioFlo PICC and about non-Bard products more generally. (Dkt. No. 255-1). Bard generally responds that Ms. Sucy is qualified to opine on the risks of loading a Bard TLS stylet bedside into any PICC and that none of her opinions depends on which company manufactures the PICC. (Dkt. No. 292, at 5-8).[1]
1. Pairing Attempt
AngioDynamics first argues that Federal Rule of Civil Procedure 37(c)(1) precludes Ms. Sucy from testifying regarding her attempt to insert a Bard TLS stylet into a valved non-Bard PICC because that topic was not included in her February 14, 2020 expert report as required by Rule 26(a)(2)(B) and the failure to include it was not substantially justified or harmless. (Dkt. No. 255-1, at 11-14). Bard responds that the disclosure standard applicable to Ms. Sucy is the lower standard found in Rule 26(a)(2)(C), and that her report therefore is not deficient. (Dkt. No. 292, at 8-9 & n.17).
Federal Rule of Civil Procedure 26(a)(2)(B) governs disclosure of an expert witness “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” Fed. R. Civ. P 26(a)(2)(B). A party's disclosure of such witnesses must be accompanied by a written expert report which contains, among other things, “(i) a complete statement of all opinions the witness will express and the basis and reasons for them; [and] (ii) the facts or data considered by the witness in forming them.” Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii). However, if the witness is “not required to provide a written report,” the party's disclosure must state “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C)(i)-(ii); see also King v. Wang, No. 14-cv-7694, 2021 WL 5232454, at *17-18, 2021 U.S. Dist. LEXIS 218243, at *51-54 (S.D.N.Y. Nov. 9, 2021) (). Here, Bard argues, and the Court agrees, that its disclosure regarding Ms. Sucy was governed by the standard set forth in Rule 26(a)(2)(C). See Bank of China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 182 n.13 (2d Cir. 2004) (...
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