AngioDynamics, Inc. v. C.R. Bard

1

ANGIODYNAMICS, INC., Plaintiff, v. C.R. BARD, INC. and BARD ACCESS SYSTEMS, INC., Defendants.

No. 1:17-cv-598 (BKS/CFH)

United States District Court, N.D. New York

September 13, 2022

For Plaintiff: Philip J. Iovieno, Helen M. Maher, Amanda L Devereux, Kristen J. McAhren, Mark A. Singer, Justin Arborn Sean F. O'Shea, Michael E. Petrella, Audrey S. Curtis Cadwalader, Wickersham & Taft LLP

For Defendants: Andrew J. Frackman, Mark Racanelli, Pamela A Miller, O'Melveny & Myers LLP, Sergei Zaslavsky, Emily Murphy, O'Melveny & Myers LLP

Robert A. Atkins, Jacqueline P. Rubin

William B. Michael, Daniel A. Crane, Paul, Weiss, Rifkind, Wharton & Garrison LLP

James P. Nonkes, Harris Beach PLLC

MEMORANDUM-DECISION AND ORDER

Hon. Brenda K. Sannes, Chief United States District Judge:

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); AngioDynamics, Inc. v. C.R. Bard, Inc., No. 17-cv-598, 2022 WL 2643583, 2022 U.S. Dist. LEXIS 120384 (N.D.N.Y. July 8, 2022) (motions in limine decision). The case is set for trial to begin on September 19, 2022. In this decision, the Court considers outstanding evidentiary issues presented to it at a conference held on August 25, 2022, and in subsequent submissions from the parties (Dkt. Nos. 404, 410).^[1]

II. EVIDENCE REGARDING OBJECTIVE PICC SUPERIORITY

Bard's exhibit list contains scientific papers which are relevant to the objective superiority of different peripherally inserted central catheters (“PICCs”). (Dkt. No. 411, at 9-10). AngioDynamics has objected to scientific papers as, inter alia, irrelevant and prejudicial. (Id.).

Bard proffers that such evidence is admissible and relevant to rebut any evidence AngioDynamics introduces regarding a particular hospital or customer's subjective experience with the BioFlo PICC. While the Court will consider specific evidence at trial, the Court does not see the relevance of broad-based, scientific evidence regarding the objective merits of a given PICC in response to evidence regarding a particular hospital's actual experience with a PICC and given the parties' stipulation that “there is no clinical evidence that establishes the superiority of BioFlo PICCs.” Furthermore, it would appear that any possible probative value of such evidence is substantially outweighed by a danger of confusing the issues, misleading the jury, and/or wasting time. Fed.R.Evid. 403.

III. EXHIBIT P-269

At the August 25, 2022 conference, the Court heard oral argument regarding the admissibility of a representative sample of exhibits identified by the parties. Exhibit P-269 is a Bard email chain in which Bard employee Amy Westfall reports “Significant Events” occurring with her customer accounts. Bard objects to this exhibit on hearsay, foundation, and relevance grounds. As an initial matter, the Bard emails are not hearsay if a proper foundation is laid under Federal Rule of Evidence 802(d)(2)(D). However, Ms. Westfall's August 28, 2012 email contains another level of hearsay when she recounts what customers have reported to her. AngioDynamics seeks to introduce the statement that the “Albany Med PICC team” “wanted . . . for Sapiens to work with NON-Bard PICCs.” The Court concludes that this statement is more like an assertion of fact being offered for the truth of the matter (that the PICC team wanted Bard's 3CG technology to work with other manufacturers' PICCs) rather than a question or inquiry about the possibility of that compatibility. Thus, because no exception to the rule against hearsay is readily apparent for this statement, it is not admissible. Similarly, Ms. Westfall's report that “Albany Med mentioned there was a study . . . ” is not admissible because it is another level of hearsay for which no exception is readily apparent.

IV. ANGIODYNAMICS'S LETTER BRIEF

A. Business Records Exception

AngioDynamics requests that the Court overrule Bard's objections on hearsay and lack of foundation grounds to Exhibits P-433, P-85, and Bard monthly reports. (Dkt. No. 404, at 2-5). As set out more specifically below, AngioDynamics argues that it can lay a foundation that these documents fall under the hearsay exception in Rule 803(6). (Id.). Bard asserts that AngioDynamics cannot lay a foundation for the admission of its own emails about alleged lost business as business records, and that these emails are “not the type of unusually reliable documents the business record exception was intended to apply to.” (Dkt. No. 410, at 1-5).

As the Court has previously stated, under the “business records exception,” a record is not excluded by the rule against hearsay if:

(a) the record was made at or near the time by-or from information transmitted by-someone with knowledge; (b) the record was kept in the course of a regularly conducted activity; (c) making the record was a regular practice of that activity; (d) the custodian certifies the record; and (e) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Abascal v. Fleckenstein, 820 F.3d 561, 565 (2d Cir. 2016) (citing Fed.R.Evid. 803(6)(a-e)). To lay a proper foundation for a business record, “a custodian or other qualified witness must testify that the document was kept in the course of a regularly conducted business activity and also that it was the regular practice of that business activity to make the record.” United States v. Komasa, 767 F.3d 151, 156 (2d Cir. 2014) (citation, internal quotation markets, and brackets omitted).

As an initial matter, AngioDynamics notes that Bard has objected to certain exhibits on the ground that the trial witness who will lay the foundation for the business records exception is not on the email chain or otherwise personally involved in the matter discussed in the document. (See Dkt. No. 404, at 4). AngioDynamics argues that a witness need not have personal knowledge of the creation of a particular document to be a “qualified witness” who can lay the proper foundation. (Id.) The Court agrees. Rule 803(6) requires the foundation to be laid by a “custodian or another qualified witness.” Fed.R.Evid. 803(6). The custodian “need not have personal knowledge of the actual creation of the document to lay a proper foundation.” Komasa, 767 F.3d at 156 (internal quotation marks and citation omitted); see also United States v. El Gammal, 831 Fed.Appx. 539, 543 (2d Cir. 2020) (summary order) (noting that the term “custodian or other qualified witness” is “generally given a very broad interpretation” and that a “witness need not be a custodian or have personal knowledge of the actual creation of the document to be ‘qualified' within the meaning of Rule 803(6)” (citations omitted)). All that is required is that the witness “is familiar with the record keeping procedures of the organization.” El Gammal, 831 Fed.Appx. at 543 n.11 (citations omitted).

1. Internal Emails Documenting Loss of Customer: Exhibit P-433

Exhibit P-433 is an internal AngioDynamics email in which Todd Mirasola reports that he “just got off a call” with Heather and Jennifer from Sunrise Hospital “where [he] learned that they would be moving away from BF valve 5 french dual piccs and going to Bard due to Navigation.” The email also states that Heather and Jennifer were on the committee that was “in on the decision.” AngioDynamics asserts that this email falls within the business records exception to the rule against hearsay because it was a “regular business practice at AngioDynamics” to send internal emails regarding the loss of a customer. (Dkt. No. 404, at 2-3). AngioDynamics relies on the deposition testimony of Scott Centea, AngioDynamics's 30(b)(6) designee. Mr. Centea testified that, as a corporate account manager, he “remain[ed] very close to the sales representatives.” (Dkt. No. 404-1, at 3-4). He stated: “It's never fun when we lose an account. And so they were always typically brought to my attention, or someone within the organization's attention, to better understand what we could have done differently to potentially save the business.” (Id. at 4; see also Dkt. No. 404-2, at 3 (testifying that “there is always kind of a postmortem discussion internally after . . . a customer decides to move away from our PICCs”)). Bard responds that the emails at issue are too “informal” to constitute business records, and that Mr. Centea's deposition testimony is insufficient to lay a foundation because he “does not even mention email at all” and has not had a “role in the sales department since 2017.” (Dkt. No. 410, at 2-3).

The Court concludes that the cited portions of Mr. Centea's testimony are insufficient to lay a foundation that it was “the producing [party's] regular practice to send or receive emails that record the type of event(s) documented in the email” and that there was a policy of using email “to make certain types of reports or to send certain sorts of communications.” Cf. Hampson v State Farm Mut. Auto Ins. Co., No. 12-cv-258, 2015 WL 12733388, at *7-8, 2015 U.S. Dist. LEXIS 194378, at *22-23 (N.D.N.Y. Oct. 22, 2015) (quoting In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, No. MDL 2179, 2012 WL 85447, at *3, 2012 U.S. Dist. LEXIS 3406, at *12-16 (E.D. La. Jan. 11, 2012)). As Bard points out, Mr. Centea's deposition testimony does not mention emails at all, much less that it was a regular practice...