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.