Jury Slaps SurgiQuest with $10M Punitive Damage Award in False Advertising Trial

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A Delaware jury awarded $2.2M in actual damages and $10M in punitive damages to Lexion Medical after a 7-day trial in which they heard evidence that SurgiQuest had intentionally engaged in false advertising and unfair competition concerning instruments used in laparoscopic surgery. The trial presented several difficulties. Not the least of which was proving a nexus or link between the false statements and a surgeon’s or hospital’s purchasing decision. Many witnesses would be presented, mostly via videotaped deposition, to illustrate that surgeons and surgical staff not only believed the false claims but acted upon those beliefs. Also presented through both live and videotaped testimony was the testimony of many SurgiQuest sales reps who said that they had been told in training the same falsehoods and had come to believe those falsehoods. (Press Release)

Putting on a case where so many witnesses were needed to prove up the claims was a huge challenge. Hours of designations were whittled down to the nub in a relentless cycle, most to under 7 minutes. In one day, the Lexion team presented 20 witnesses: 4 live and 16 by videotape. That’s certainly a lot of video, but the quick pace and short duration of each kept the jury interested. The videos were broken up with live witnesses, as well.

Diagrams, photographs, documents and testimony excerpts formed the basis of most expert testimony. Although the subject of animations to explain the surgical procedure and instrumentation were discussed early on, we recommended static diagrams which are faster and less expensive to produce, more flexible in the Q:A format of an examination, and less susceptible to objections from opposing counsel. For closing, we prepared some 200 slides, most of which were testimony experts from trial testimony paired with key documents. Focusing on admissions made by SurgiQuest’s witnesses brought a lot of credibility to the argument.

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Congratulations to David Wille, Paul Reilly and Megan LaDriere of Baker Botts (Dallas) for putting on a strong case and bringing a victory to Lexion Medical. We are proud to have helped!

Graphics Double Comprehension

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We all understand that we should incorporate graphics to strengthen the power of our presentations. It’s a maxim supported by our personal learning experiences, our observations of others, and by numerous scientific examinations. But, why does it work, and how strong is the effect in the courtroom? The answer to these questions can be found   within the very structure of your   brain.

You remember what you see far more than what you hear.

As humans, we experience our world through our eyes. Your retinas contain 70% of all    sensory receptors in your body and are actually outgrowths of your brain! Your brain’s visual system occupies up to 40% of your cerebral cortex. For comparison, touch takes up about 8% of the cerebral cortex and hearing accounts for only 3%.    [1][2]

We are visual creatures – but our ability to use language is a defining, though not quite exclusive, human characteristic. Even so, our linguistic abilities arise from much smaller areas of the brain found almost entirely within one hemisphere – Broca’s area and Wernicke’s area. [3] [4]

This visual dominance explains why our ability to remember visuals is far greater than our ability to remember words. Studies consistently demonstrate that people shown over 2,000 images for a few seconds each can remember having seen them or not with an accuracy exceeding 90%, even after 3 days. [5] People’s ability to accurately recall what was said to them is about 50% immediately following a presentation and falls to about 25% after only 1 day. [6] Worse, research suggests that about half of what you remember is actually incorrect. [7]

Words and pictures interact to form more meaningful connections.

So, now we know that jurors can remember less than half of what they hear and almost all of what they see. But simply remembering the evidence is not enough. We need jurors who understand the evidence, who can fit that understanding into their larger world-view. And    we need jurors who can work as our advocates during deliberations, using their  understanding of the evidence to craft new arguments as they work with other jurors to   reach a verdict.

Neuroscientists describe the visual and verbal systems of our brain using a “dual coding  model” in which each channel operates independently to process information. Both channels have limited bandwidth and can be overwhelmed by too much stimulation – too many words  or images coming too quickly – but they do not interfere with one another. [8] Instead, raw data from both the visual and verbal channels are buffered in working memory where information and meaning are extracted, tested against information we already know, and if deemed important enough, stored in long-term memory for later   recall.

Importantly, while information is in working memory, the visual and verbal channels can interact with one another. When the information from each channel “fits together,” it forms something stronger and more meaningful. Like cement mixing with sand and gravel to form concrete, the interacting information is changed into a self-reinforcing amalgam, an idea not

only remembered but understood. This interlocked understanding linking the words and the picture together can then be stored in long term memory. When we think of the words, we see the images. When we think of the image, we also hear the words. The interlinking is what gives meaning to each.

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Combining visuals and words doubles comprehension.

Some remarkable research from Dr. Richard Mayer at the University of California shines a light on putting pictures to our words, what he calls the “multimedia principle.” Not only does his work validate what we know about dual coding with the visual and verbal channels, he has measured the improvement in learning – not just memory, but understanding of the subject matter.

Briefly, he gave one group of subjects a lecture on how a tire pump works while another group heard the same lecture synchronized with an animation of the tire pump in action. Dr. Mayer wanted to know which group understood the material better. To  get at this information, he posed questions designed to test recall and application of the facts. For example, one question asked participants how to improve the pump’s efficiency and another question asked them to troubleshoot a malfunctioning pump. These ideas were not covered in the presentation. To answer, subjects would have to demonstrate an understanding of how and why the pump works. The results were dramatic.

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“Subjects were scored based on whether their answers to the problem solving scenarios were considered plausible or acceptable by researchers conducting the study. They were given four questions, with 2.5 minutes to come up with as many solutions for each question.”

 

The lesson for trial advocates is clear.

If we want jurors to not only remember our evidence and our arguments, but to also understand them, we must use visuals to strengthen our words. If you are explaining a business deal, draw a flow-chart. If you are explaining technology, narrate an animation. If you are telling a story, use a timeline, photos of the characters, maps, etc. to illustrate each   scene.

We must be careful to remember that the jury is always looking; their visual system is a 24- hour news channel that can’t be turned off. We should, as much as possible, control what      they see. There is a time for demonstratives and visual evidence, certainly. But, there is also a time for having the jury look at the squirm of a witness, the grim expression of the defendant, the eyes of the attorney delivering a passionate closing argument. We may even want to visually distract when things are not going so well. Everything they see is visual evidence – make certain it works to your benefit.

Happy Holidays!

Well, another year, another quirky greeting from your friends at Barnes & Roberts! This year we celebrate the awkward family photo with a nod to the fine folks at Olin Mills who, for many decades, were the gold standard of awkwardness. Only the artistic geniuses at Olin could have given the world the amazing floating-head-double-exposure.

Oh, Holiday Sweaters? Yeah, we’ve got those. I know, the royal family got out in front of us with the release of their own card, but we’ve still got plenty of style going on up there and I’m sure we’ll break the internet when this thing goes viral! Besides, I think we are a lot more natural than Queen E at being awkward.

The queen may have her corgies (and we all know why), but we’ve got cats. Lots of cats. How many cats? That’s like asking how many mustaches or how many arms – it gets tricky. Take a closer look here for some Photoshop fun then check here to see if you spotted all of our little jokes.

Then we wrapped the entire thing in an Instagram post. #justforkicks

As always, thank you for your support this past year. We’ve enjoyed working with you. You are part of our larger family – our squad –  and we genuinely wish you all the best this holiday season and throughout the coming year.

Jason.

Batting 1.000

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4 Pitches – 4 Home Runs

In the past year, Barnes & Roberts won every case it tried in Marshall, Texas, the most notorious patent docket in the country. Even Ted Williams batted only .400!

Mobile Telecommunications Technologies v. HTC- Defense win
Genband v. Metaswitch Networks Ltd., et al.- Plaintiff win
Metaswitch Networks Ltd., et al. v. Genband- Defense win
ContentGuard Holdings, Inc. v. Google- Defense win

Barnes & Roberts specializes in high-stakes litigation, explaining complex subject matter, and giving you our complete commitment to victory. Barnes & Roberts can help you try your next case whether it involves software, networking, and computer hardware, complex shareholder claims, or products liability on medical devices. Of course, we also win cases in Massachusetts, Delaware, Florida, Illinois, California, Washington, Oregon, and all over Texas.

Call Jason Barnes or Casey Gooden today at 214-421-5900 to see how we can help you win, too!

Another Knock-Out!


Marshall, Texas has a reputation as a tough place for defendants accused of patent infringement. But the Barnes & Roberts team is helping to change this reputation – one fight at a time. On Friday, September 23rd, a Marshall jury returned a knock-out victory of non-infringement for handset seller, HTC America. Additionally, the jury found by clear and convincing evidence that the claims asserted by Mobile Telecommunications Technologies (MTel) were invalid.

Congratulations for the victory belong to our clients Jerry Selinger, Susan Powley and Trampas Kurth, of the patent powerhouse Patterson + Sheridan in Dallas.