A federal judge yesterday granted a bid by the family of the late physician who helped invent the implantable cardioverter defibrillator, Dr. Michel Mirowski, to send a $570 million lawsuit against Boston Scientific (NYSE:BSX) back to a Maryland state court.
Judge William Quarles Jr. of the U.S. District Court for Maryland found that Boston Scientific’s removal of the case to the federal court was untimely, according to court documents.
Mirowski Family Ventures LLC (Mirowski died in 1990) originally sued Boston Scientific and its Guidant subsidiary in the Circuit Court for Montgomery County, Maryland, alleging that a secret deal with rival St. Jude Medical (NYSE:STJ) cut Mirowski out of some $570 million in royalties and damages. The alleged pact with St. Jude to settle 6 cases was designed to hush up false testimony in an earlier patent infringement case by an expert witness for BSX/Guidant, the lawsuit claims.
In that case, Boston Scientific and Mirowski sued St. Jude for patent infringement. They won the suit and a $313 million judgment, but it was thrown out of court after the false testimony came to light in another patent infringement lawsuit with Medtronic (NYSE:MDT), according to the documents, costing Guidant some $377 million and invalidating 1 of the patents at issue. That invalidation allegedly prompted then-Guidant to deny royalties owed to Mirowski on the grounds that royalties can’t be owed on an invalid patent, according to the documents.
The Mirowski family filed suit in February 2013 in the Maryland state court, where the case was litigated until Boston Scientific won its bid to remove the case to federal court in September of that year, according to court documents.
Yesterday Quarles ruled that the company waited too long to have the case removed in an effort to "forum shop."
"Boston Scientific’s delay in removing until after the denial of its motion for additional claim construction – and after litigating in state court for several months – suggests that it is merely seeking a more hospitable forum," Quarles wrote.