Kurin, Inc. v. Magnolia Med. Techs., Inc.

• Decision Date: 20 July 2020
• Docket Number: Case No.: 3:18-cv-1060-L-LL
• Citation: 473 F.Supp.3d 1117
• Parties: KURIN, INC., Plaintiff, v. MAGNOLIA MEDICAL TECHNOLOGIES, INC., Defendant.
• Court: U.S. District Court — Southern District of California

473 F.Supp.3d 1117

KURIN, INC., Plaintiff,

v.MAGNOLIA MEDICAL TECHNOLOGIES, INC., Defendant.

Case No.: 3:18-cv-1060-L-LL

United States District Court, S.D. California.

Signed July 20, 2020

Nathan D. Thomas, Elizabeth Mary Butler, Jones Waldo Holbrook & McDonough PC, Salt Lake City, UT, Jonathan Hangartner, X-Patents, APC, La Jolla, CA, for Plaintiff.

Christopher M. Young, Melissa Anne Reinckens, Susan N. Acquista, DLA Piper LLP, San Diego, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART KURIN'S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND GRANTING MAGNOLIA'S MOTION FOR SUMMARY JUDGMENT

M. James Lorenz, United States District Judge

Pending before the Court are Plaintiff Kurin Inc.’s ("Kurin") Motion for Partial Summary Judgment (doc. no. 50) and Defendant Magnolia Medical Technologies, Inc.’s ("Magnolia") Motion for Summary Judgment and to Exclude Kurin's Unreliable Expert Opinions (doc. no. 56). Both motions are fully briefed.¹ The Court determines these motions without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons that follow, Kurin's motion for partial summary judgment of its claims against Magnolia is granted only insofar as Kurin has established literal falsity of Magnolia's representation that the 93% average reduction in blood culture contamination is based on "multiple publications and peer-reviewed studies." Summary adjudication of Kurin's related request for permanent injunctive relief is denied. Kurin's motion for summary judgment on Magnolia's counterclaims is denied. Magnolia's motion for summary judgment on Kurin's claims is granted. Its related request to exclude the expert opinions of Jeffrey K. Shapiro and Patrick F. Kennedy is granted in part.

I. BACKGROUND

As part of normal testing procedures, medical professionals draw blood from patients to test for the presence of blood-borne infection such as sepsis. (Doc. no. 12 (Am. Answer and Countercl. ("Countercl.") at 9-10.)² If blood culture indicates a positive result, it influences clinical decision-making, including an antibiotic regimen and additional testing. (Id. at 10.) However, in many cases, a positive result is caused by a contaminant on the patient's skin rather than in the blood stream. (Id. ) Preventing false positive results is important to reduce the expense and health risk from unnecessary antibiotic treatment and testing. (Id.; see also doc. no. 1 ("Compl.") at 2.)

Kurin and Magnolia are competing medical device companies marketing blood sample collection devices to health care providers. (Doc. no. 75 (Joint Statement of Undisputed Facts ("Joint Statement")) at 2.) Each markets its own device designed to minimize false positive results. (Countercl. at 11; Compl. at 2.)

Magnolia's Steripath device employs a proprietary specimen diversion mechanism which diverts the initial portion of blood draw into a separate chamber to sequester skin and other contaminants. (Countercl. at 10.) A new, second sterile blood flow path is then opened as the blood sample collected for testing. (Id. ) Magnolia began distributing Steripath in June 2014 and started selling it commercially about a year later. Steripath is registered and listed with the United States Food and Drug Administration ("FDA"). (Doc. no. 75 (Joint Statement of Undisputed Facts ("Joint Statement")) at 2.)

The Kurin Lock device operates on a similar principle. (See Comp. at 2.) Kurin received its FDA 510(k) clearance to market the Kurin Lock on December 23, 2016 and launched its product around January 2017.

On May 29, 2018, Kurin filed a complaint claiming Magnolia makes false and misleading representations in its marketing of Steripath. It alleged claims for false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a) ("Lanham Act"), and California Business and Professions Code § 17500 et seq. ("FAL"), as well as unfair competition under California Business and Professions Code § 17200 et seq. ("UCL"). Kurin seeks injunctive relief and damages. Magnolia filed counterclaims alleging Lanham Act and FAL violations, seeking the same relief against Kurin based on Kurin's marketing of Kurin Lock.

In its pending motion, Kurin requests summary adjudication of some of its claims for injunctive relief, and summary judgment on Magnolia's counterclaims. In its cross-motion, Magnolia seeks summary judgment on each of Kurin's claims and exclusion of expert opinions offered by Jeffrey K. Shapiro and Patrick F. Kennedy.

II. DISCUSSION

Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses. Summary judgment or adjudication of issues is appropriate if depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c)(1).

The burden on the party moving for summary judgment depends on whether it bears the burden of proof at trial.

When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.

See C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc. , 213 F.3d 474, 480 (9th Cir. 2000).³

On the other hand, if the moving party would not bear the burden at trial, it can meet its burden on summary judgment by "either of two methods." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc. , 210 F.3d 1099, 1106 (9th Cir. 2000). It may

produce affirmative evidence ... negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may ... meet its initial burden of production "by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case."

Id. at 1105-06 (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).⁴ "A moving party may not require the nonmoving party to produce evidence supporting its claim or defense simply by saying that the nonmoving party has no such evidence." Nissan Fire & Marine Ins., 210 F.3d at 1105.

If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial. In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything.

Id. at 1102-03 ; see also Adickes v. S.H. Kress & Co. , 398 U.S. 144, 160, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

"If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire & Marine Ins., 210 F.3d at 1103. In this regard, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex , 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party

must do more than simply show that there is some metaphysical doubt as to the material facts[, but] must come forward with specific facts showing that there is a genuine dispute for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge .... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"[I]f the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion." Nissan Fire & Marine Ins., 210 F.3d at 1103. If it does not produce enough evidence, then the moving party wins the motion for summary judgment. Id.

"The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist. , 237 F.3d 1026, 1030 (9th Cir. 2001). The Court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996).

The filing of cross-motions for summary judgment "does not necessarily mean there are no disputed issues of material fact and does not necessarily permit the judge to render judgment in favor of one side or the other." Starsky v. Williams , 512 F.2d 109, 112 (9th Cir. 1975). Furthermore, "each motion must be considered on its own merits," and the court must consider evidence submitted in support of and in opposition to both motions before ruling on each one. Fair Hous. Council of Riverside County, Inc. v. Riverside Two , 249 F.3d 1132, 1136 (9th Cir. 2001).

Issues in both summary judgment motions involve false advertising under the Lanham Act. To prevail, a party must prove the following elements:

(1) a false statement of fact by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct

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