BioCore, Inc. v. Khosrowshahi

183 F.R.D. 695, 1998 U.S. Dist. LEXIS 20511, 1998 WL 918316
CourtDistrict Court, D. Kansas
DecidedDecember 31, 1998
DocketNos. Civ.A. 98-2031-KHV, Civ.A. 98-2175-KHV
StatusPublished
Cited by12 cases

This text of 183 F.R.D. 695 (BioCore, Inc. v. Khosrowshahi) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BioCore, Inc. v. Khosrowshahi, 183 F.R.D. 695, 1998 U.S. Dist. LEXIS 20511, 1998 WL 918316 (D. Kan. 1998).

Opinion

MEMORANDUM AND ORDER

VRATIL, District Judge.

On November 12,1998, Hamid Khosrowsh-ahi filed Defendants’ Daubert Motions To Preclude The Testimony Of Plaintiffs’ Expert Witnesses (Doc. #428). At a status conference on December 14, 1998 the Court overruled that motion but entered various orders to show cause why the testimony of plaintiffs’ expert, David Cochran, should not be stricken. The matter now comes before the Court on Plaintiffs’ Response On Orders To Show Cause (Doc. # 496) filed December 21, 1998. The parties are fully familiar with Cochran’s expert report and in addressing the issues raised by plaintiffs’ response to the orders to show cause, the Court will not burden the record by elaborate discussion of it.

1. Method One

Cochran employs two methods of computing lost profits. Method One, which produces a lost profit claim of $105,614,236 for 1999 through 2006, depends entirely on sales projections for 1999 through 2002 for Integra LifeSciences Corporation. Cochran takes the Integra projections (which are for Via-derm, an avian-based collagen product which Integra never put on the market and which differs from plaintiffs’ bovine-based collagen product) and extrapolates them to reflect Viaderm sales through 2006.1 Method One makes several key assumptions:

First, that the market for collagen wound products is static and that plaintiffs will have no competition except Integra, so that every sale made by Integra is a sale lost to plaintiffs. In actuality, the record suggests that the market is anything but static,2 and plaintiffs now have 25 competitors and 64 competing products.

Second, not only that Integra’s sales projections are reasonable for 1999 through 2002, but also that Cochran can reasonably extrapolate them from 2003 through 2006. In fact, Viaderm has never been marketed, so none of the projections can be tested, and the record is devoid of evidence regarding the wound care industry (and the respective roles of Integra and BioCore in it) which would independently justify the sales projections through 2003.

Third, that Integra is in the market, or will be, effective January 1, 1999.3 The record, however, contains no such evidence.

On this record, the Court was concerned that the evidence to be produced at trial would not permit the jury to reasonably agree that the relevant market is static; that every sale made- by Integra would be a sale lost to plaintiffs; that Integra’s untested sales projections (for a product different than plaintiffs’) would afford a reasonable basis for calculating damages; or that Integra is [698]*698going to enter the relevant market on January 1, 1999 — or ever. Absent such evidence the Court feared that Cochran’s opinion would not assist the jury in understanding the evidence and determining the amount of damages, see Fed.R.Evid. 702, and that the probative value of his opinion would be outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay and waste of time under Fed.R.Evid. 403. The Court therefore ordered plaintiffs to show cause in writing on or before December 21, 1998 why Cochran’s opinion as to Method One should not be barred for lack of evidentiary support.

In response to the Court’s concern that the relevant market is not static and that as a matter of basic economics Cochran cannot reasonably assume that every sale made by Integra will be one lost to plaintiffs, plaintiffs concede that “it is certainly possible that not every Integra sale would replace a Biocore sale.” They nonetheless argue that “the intent of Integra was to market a product that directly competed with the BioCore product” and thus to “take sales from BioCore and not other manufacturers.” In support of this position, plaintiffs cite evidence that Integra hired Khosrowshahi to “begin execution of an operating plan for a collagen-based wound care business,” see Exhibit A to Plaintiffs’ Response On Orders To Show Cause (Doc. # 496) [Plaintiffs’ Ex. A].4

In response to the Court’s concern that Integra’s untested sales projections do not afford a reasonable basis for calculating damages, plaintiffs respond that (1) Khosrowsh-ahi prepared the Integra projections and he should not be allowed to impeach his own report; and (2) even though Viaderm never went on the market, there is no reason to believe that Integra’s projections are unreasonable. As to the first point, plaintiffs do not cite Fed.R.Evid. 801(d)(2) or expressly argue that the Integra projections represent an admission by Khosrowshahi.5 They have failed to provide the Court a copy of the alleged projections and they cite no affidavits or other record evidence from which the Court might find that the projections would be admissible in evidence under any legal theory. In fact, though plaintiffs allege that Khosrowshahi prepared the projections, they cite no evidence of that alleged fact. As to plaintiffs’ argument that there is “no reason to believe that [the] projections ... are unreasonable,” plaintiffs misconceive their evi-dentiary burden as a proponent of the evidence.6 The projections concern a different type of product than plaintiffs’ product, and they are totally untested because Integra never marketed its product. These naked facts, standing alone, raise substantial questions concerning the relevance of the evidence and the reliability of the projections. On this record those questions cannot be resolved in plaintiffs’ favor.

Finally, in response to the Court’s stated concern that plaintiffs lack evidence that In-tegra is going to enter the relevant market on or after January 1, 1999, plaintiffs ask that they be allowed to prove that Integra is [699]*699“poised” to enter the market in direct competition with BioCore. As noted above, the record contains not one iota of direct evidence that Integra plans to enter BioCore’s market in the foreseeable future.7 Plaintiffs’ entire theory is based on speculation that Integra is “poised” to enter the market; that even if Integra does not enter the market, someone else will;8 that either way, BioCore will sustain devastating injury; and that even if no one markets a competing product, Bio-Core will sustain losses in the “hundreds of millions of dollars.” Unfortunately, however, plaintiffs have cited no record evidence from which a jury might reasonably agree that Integra plans to enter the market; that In-tegra has communicated BioCore trade secrets to third parties; that third parties plan to enter the market; or that anyone is capable of replicating or marketing BioCore products, with or without access to its alleged trade secrets. In sum, no reasonable jury would agree with plaintiffs that “it is clear today, that BioCore will not be able to realize the profits that it would otherwise expect because Integra or some other company will be able to capture a substantial percentage of the market share now maintained by Bio-Core.”

The notes of the advisory committee make clear that Fed.R.Evid.

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Bluebook (online)
183 F.R.D. 695, 1998 U.S. Dist. LEXIS 20511, 1998 WL 918316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biocore-inc-v-khosrowshahi-ksd-1998.