Bracco Diagnostics, Inc. v. Amersham Health, Inc., Civil Action No. 03-6025.
| Decision Date | 05 June 2009 |
| Docket Number | Civil Action No. 03-6025. |
| Parties | BRACCO DIAGNOSTICS, INC., Plaintiff, v. AMERSHAM HEALTH, INC., et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Arnold B. Calmann, Esq., Saiber LLC, Newark, NJ, Donald L. Rhoads, Esq., Nicholas L. Coch, Esq., Christopher A. Colvin, Esq., Albert B. Chen, Esq., Kramer, Levin, Naftalis & Frankel, LLP, New York, NY, for Plaintiff Bracco Diagnostics, Inc.
Richard L. DeLucia, Esq., Charles A. Weiss, Esq., Jeffrey S. Ginsberg, Esq., Kenyon & Kenyon, LLP, New York, NY, for Defendant Amersham Health Inc., Amersham Health AS, Amersham PLC.
This matter comes before the Court upon a Complaint brought by Plaintiff Bracco Diagnostics Inc. (referred to herein as "Bracco") against Defendants Amersham Health Inc., Amersham Health AS, and Amersham PLC (collectively referred to herein as "GEH") for alleged false advertising in violation of the Lanham Act. In response, GEH filed a Counterclaim against Bracco for alleged false advertising of its own line of products. Bracco and GEH have competing product lines in the contrast medium healthcare industry. The crux of Bracco's case is that GEH has falsely advertised the superiority of its product, Visipaque, over Bracco's product, Isovue. The Court conducted a thirty-nine day bench trial with numerous experts1 and witnesses testifying as to each party's product lines and the underlying clinical studies upon which GEH and Bracco have based their advertising campaigns.
In light of the evidence presented at trial, the Court concludes that GEH did promote false messages which were sufficient in number to constitute actionable commercial advertisements or promotions under the Lanham Act, however the Court finds that Bracco has failed to establish a causal nexus between GEH's false advertisements and Bracco's alleged lost profit damages. In that regard, the Court determines that the greater number of GEH's advertisements were in fact true and based on reliable scientific studies. The messages that the Court finds false are those that extrapolate beyond the studies' results. In connection with Bracco's claim, the Court finds that an injunction and damages for post and future corrective advertising are appropriate remedies to prevent future violations of the Lanham Act. As to GEH's counterclaim, GEH dismissed its claim for damages and Bracco has stipulated that it no longer uses the offending advertisements. Thus, although the Court finds that certain of Bracco's ads were false, nonetheless, an injunction is not appropriate in this case. In addition, the Court imposes an alternative dispute mechanism applicable to both parties for safeguarding against any future false advertisements.
GEH and Bracco market and sell x-ray contrast media ("CM") in the United States. CM are classified by osmolality. HOCM (high osmolar CM) have osmolalities of greater than 1500 mOsm/kg. LOCM (low osmolar CM) have osmolalities between 600 and 850 and include Omnipaque (iohexol), Isovue (iopamidol), Hexabrix (ioxaglate), Ultravist (iopromide), Iomeron (iomeprol), and Optiray (ioversol). The osmolality of blood is approximately 290 mOsm/kg. Both GEH and Bracco market LOCM; GEH sells Omnipaque and Bracco sells Isovue. In addition, GEH also markets a product called Visipaque (iodixanol) which it classifies as isoosmolar or isotonic, (i.e.,—its osmolality equals blood). Visipaque is referred to in various medical literature as an IOCM (iso-osmolar CM). Part of GEH's advertising campaign is that its iso-osmolar CM performs better than LOCM. Visipaque was introduced in 1996, ten years after Omnipaque and Isovue were marketed and is the only "IOCM" available in the U.S.
On December 16, 2003, Bracco filed a four count Complaint in the District of New Jersey against GEH alleging: (1) dissemination of false and misleading advertisements in violation of Section 43(a) of the Lanham Act; and (2) N.J.S.A. 56:4-1, et seq.; (3) violations of the common law of unfair competition; and (4) negligent misrepresentations. GEH filed an Answer and two counterclaims against Bracco alleging: (1) dissemination into commerce of allegedly false and misleading statements concerning the relative safety of Omnipaque, Visipaque, and Isovue in violation of Section 43(a) of the Lanham Act; and (2) N.J.S.A. 56:4-1, et seq. GEH's counterclaim was filed against Bracco and its foreign affiliates, Bracco S.p.A. and Bracco Imaging S.p.A. However, pursuant to an Order entered on September 7, 2004, GEH's counterclaim against Bracco's foreign affiliates was dismissed for lack of personal jurisdiction. Motions for Summary Judgment were denied by the Court, after which, a thirty-nine day bench trial was conducted between the period of May 7, 2007 and December 2007, followed by further written submissions. The Court held a hearing on May 15, 2008, wherein the Court resolved evidentiary objections regarding the admission of disputed...
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