Compass Lexecon Client DePuy Synthes Prevails in Patent Infringement Litigation

U.S. District Court Judge Paul S. Diamond for the Eastern District of Pennsylvania granted summary judgment mid-trial in favor of Compass Lexecon’s client DePuy Synthes (comprising DePuy Synthes Products, Inc., Medical Device Business Services, Inc., and DePuy Synthes Sales, Inc., collectively, “DePuy”), in a patent infringement case in which inventor Dr. Mark Barry (Plaintiff) accused DePuy of infringing his spinal alignment patent.

Compass Lexecon affiliate, Professor Peter E. Rossi, was retained by counsel for DePuy to review and evaluate a survey designed and executed by Plaintiff’s survey expert. The survey was conducted among a select, non-random group of spine surgeons and extrapolated to the broader universe of all relevant surgeries performed in the United States in support of Plaintiff’s infringement allegations and damages claims. Professor Rossi submitted a rebuttal expert report and testified in deposition and at trial that Plaintiff’s survey suffered from a number of major methodological flaws that rendered the survey results and conclusions unreliable. These included failure to demonstrate representativeness of the survey sample, lack of reliability of the survey responses, and logical error in the survey construction.

The Court’s ruling was consistent with the opinions of Professor Rossi. Following a seven-day trial, Judge Diamond granted DePuy’s Daubert Motion to exclude Plaintiff’s survey expert and concluded that “there is no legally sufficient evidentiary basis for a reasonable jury to find for Plaintiff on direct infringement.” In a subsequent memorandum, Judge Diamond explained the bases of his decisions, noting that “flaws in an expert’s methodology usually go to the weight, not the admissibility of the expert’s evidence. Here, however, there was no showing of reliability. [Plaintiff’s survey expert’s] methodology was so flawed that any damages calculation based on that methodology was necessarily speculative. Moreover, because the survey was flawed and muddled, its admission would certainly have confused and misled the jury.”

Professor Rossi was supported by a Compass Lexecon team that included Niall MacMenamin and Zhaoning (Nancy) Wang.

Compass Lexecon worked closely with Counsel from Jones Day, who successfully represented DePuy.