Globus Medical (NYSE:GMED) wants a federal judge in Delaware to overturn its $16 million patent infringement loss to Johnson & Johnson‘s (NYSE:JNJ) DePuy-Synthes unit because a key witness for Synthes lied on the stand about his credentials.
A jury in the U.S. District Court for Delaware ruled in June 2013 that Audubon, Pa.-based Globus infringed on 3 Synthes spinal implant patents with its now-discontinued Independence ALIF system, Coalition ACDF system and InterContinental Plate-Spacer product lines.
The $16 million judgment was based on a 15% royalty rate applied to approximately $107 million in revenues Globus reported from the sale of the devices. But in December 2014, Synthes learned from Richard Gering’s former employer that he did not have a Ph.D., as he testified to under oath, according to court documents.
"Neither Synthes nor Synthes’ counsel knew or had any reason to know prior to this disclosure that Mr. Gering did not have a Ph.D.," the company argued, according to the documents.
Synthes let the court and Globus know the day after it found out, according to court filings, prompting the March 2 Globus bid to toss the case. Synthes argued that the lack of credentials doesn’t mean Gering was unqualified as an expert witness or that the newly discovered information renders Mr. Gering’s opinions or underlying methodology substantively flawed.
"Globus thus does not address whether, much less dispute that, the final judgment is justified based on Mr. Gering’s true credentials. Instead, Globus bases its entire motion on the alleged impeachment value of exposing Mr. Gering’s lack of a Ph.D., apparently arguing that impeachment on this one of Mr. Gering’s many credentials would discredit not only all of Mr. Gering’s testimony, but somehow all of the testimony of Synthes’ other witnesses," Synthes argued. "Globus has not produced any substantive evidence that would undermine the Court’s damages judgment, and certainly nothing that would undermine the Court’s validity or infringement judgments."
Globus countered that Gering’s credentials were an important basis for his expert opinion in the case.
"Synthes’ arguments against relief rest upon a fiction that Mr. Gering’s falsified credentials were immaterial to the judgment. But Synthes does not dispute that Mr. Gering’s opinions had 3 stated bases, 1 of which was his education. Synthes further ignores the importance of expert witness testimony to ascertaining patent damages, as this court told the jury in its instructions," Globus said in a court filing. "But perhaps most striking is Synthes’ admission that it did not investigate Mr. Gering’s background – despite its obligation to do so under [federal statute] – yet its counsel knew how to do so quickly and cheaply.
"Synthes’ argument that Globus could have discovered Mr. Gering’s falsified Ph.D. if Globus knew of the same 3rd-party source that Synthes’ counsel plainly knew of is irrelevant. Globus took actions to investigate Mr. Gering’s credentials that were reasonable under the circumstances. Globus had no reason to know from its investigation that Mr. Gering falsified his credentials and perjured himself for more than a decade," the company said in the filing.
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