Edwards Lifesciences Corporation v. Meril Life Sciences Pvt. Ltd.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EDWARDS LIFESCIENCES Case No. 19-cv-06593-HSG CORPORATION, et al., 8 ORDER GRANTING IN PART AND Plaintiffs, DENYING IN PART PLAINTIFFS’ 9 MOTION TO PRECLUDE CERTAIN v. TESTIMONY OF ROBERT VIGIL AND 10 GRANTING AND DENYING MERIL LIFE SCIENCES PVT. LTD., et al., ASSOCIATED ADMINISTRATIVE 11 MOTIONS TO SEAL Defendants. 12 Re: Dkt. Nos. 207, 208, 218, 228, 235

13 Pending before the Court is Plaintiffs Edwards Lifesciences Corporation’s and Edwards 14 Lifesciences LLC’s (collectively “Edwards” or “Plaintiffs”) motion to preclude portions of the 15 testimony of Robert Vigil, the damages expert for Defendants Meril Life Sciences Pvt. Ltd. and 16 Meril, Inc. (collectively “Meril” or “Defendants”). Dkt. No. 208 (“Mot.”). This motion is fully 17 briefed.1 See Dkt. Nos. 236 (“Opp.”), 238 (“Reply”). The parties have also filed associated 18 administrative motions to seal (“Motions to Seal”) portions of their briefs and exhibits. Dkt. Nos. 19 207, 218, 228, 235. For the following reasons, Plaintiffs’ motion to preclude portions of the 20 testimony of Robert Vigil is GRANTED IN PART and DENIED IN PART and their Motions to 21 Seal are DENIED and GRANTED IN PART and DENIED IN PART. 22 I. BACKGROUND 23 Because this case has been actively litigated, the Court limits its review of the factual and 24 procedural background to that relevant to the pending motions. Defendants are an India-based, 25 global medical device company that created a “Myval” branded transcatheter heart valve. Dkt. 26 27 1 No. 98 at 1. Plaintiffs supply medical devices for the treatment of heart disease, including 2 artificial heart valves. Id. at 2. Among their best-known products are their “SAPIEN®” 3 transcatheter prosthetic heart valves. Id. On October 14, 2019, Plaintiffs brought the current 4 lawsuit against Defendants alleging patent infringement, trademark infringement, unfair 5 competition, and false advertising claims relating to the parties’ transcatheter heart valves. Dkt. 6 No. 1 at 25-31. 7 On April 6, 2020, Plaintiffs filed an amended complaint with claims for: (1) Statutory and 8 Common Law Trademark Infringement in violation of 15 U.S.C. § 1114 and the common law; (2) 9 Unfair Competition in violation of 15 U.S.C. § 1125(a); and (3) Unfair Competition and False 10 Advertising in violation of §§ 17200 and 17500 of the California Business and Professions Code. 11 Dkt. No. 51 (or “FAC”) ¶¶ 96-111. For their statutory and common law trademark infringement 12 claim, Plaintiffs allege that Defendants infringed their PARTNER trademark by using the phrase 13 “Partner the Future” at the 2019 TCT Conference in San Francisco; at the 2019 EuroPCR 14 Conference in Paris, France; and in promotional materials related to those two events. Id. ¶¶ 20- 15 22, 49-52. For their Lanham Act and California unfair competition law (UCL) claims, Plaintiffs 16 allege that one of Defendants’ sponsored presentations at the 2018 TCT Conference in San Diego 17 contained incorrect data, and that Defendants made several false or misleading statements at or 18 associated with their presence at the 2019 TCT Conference in San Francisco, the 2019 and 2020 19 EuroPCR Conferences in Paris, France, and the 2019 London Valves Conference in London, 20 England. Id. ¶¶ 41-52. 21 Both parties intend to call expert witnesses to testify about damages. Plaintiffs’ expert 22 witness, Michael Wagner, submitted his report on August 6, 2021, estimating damages for the 23 alleged trademark infringement and alleged false advertising. See Dkt. No. 208-2 (“Wagner 24 Rpt.”). On August 20, 2021, Defendants served Dr. Robert Vigil’s rebuttal damages report, in 25 which he contends that Mr. Wagner’s analysis “suffers from numerous flaws and unsupported 26 assumptions that render his opinion unreliable and vastly overstated.” See Dkt. No. 208-3 (“Vigil 27 Rpt.”) ¶ 40. Dr. Vigil states that he assumes for purposes of his report that Defendants are liable 1 not suffer any economic harm and finds no basis to award them any damages. Id. ¶¶ 2, 40. He 2 further opines that if a trier of fact finds that damages are due, they would be no more than 3 $112,292 for the trademark infringement claim, $93,888 for the false advertising claim, and no 4 more than $152,180 for both claims because the damages overlap. Id. ¶¶ 5, 70. Plaintiffs now 5 move to preclude portions of Dr. Vigil’s testimony under Federal Rule of Evidence 702. 6 II. LEGAL STANDARD 7 Federal Rule of Evidence 702 allows a qualified expert to testify “in the form of an opinion 8 or otherwise” where: 9 (a) the expert’s scientific, technical, or other specialized knowledge 10 will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; 11 (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to 12 the facts of the case. 13 Fed. R. Evid. 702. Expert testimony is admissible under Rule 702 if the expert is qualified and if 14 the testimony is both relevant and reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 15 579, 597 (1993); see also Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1015 (9th 16 Cir. 2004). Rule 702 contemplates a “broad conception of expert qualifications.” Hangarter, 373 17 F.3d at 1018 (emphasis in original). 18 Courts consider a purported expert’s knowledge, skill, experience, training, and education 19 in the subject matter of his asserted expertise. United States v. Hankey, 203 F.3d 1160, 1168 (9th 20 Cir. 2000); see also Fed. R. Evid. 702. Relevance, in turn “means that the evidence will assist the 21 trier of fact to understand or determine a fact in issue.” Cooper v. Brown, 510 F.3d 870, 942 (9th 22 Cir. 2007); see also Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (“The requirement that 23 the opinion testimony assist the trier of fact goes primarily to relevance.”) (quotation omitted). 24 Under the reliability requirement, the expert testimony must have a “reliable basis in the 25 knowledge and experience of the relevant discipline.” Primiano, 598 F.3d at 565. To ensure 26 reliability, the Court “assess[es] the [expert’s] reasoning or methodology, using as appropriate 27 such criteria as testability, publication in peer reviewed literature, and general acceptance.” Id. at III. DISCUSSION 1 A. Motion to Preclude Expert Testimony 2 i. References to Underlying Evidence 3 Plaintiffs ask the Court to preclude Dr. Vigil from testifying about certain topics identified 4 in his rebuttal report for four primary reasons. First, Plaintiffs contend that much of Dr. Vigil’s 5 testimony would be unhelpful to the jury because it is not based on specialized expertise and 6 instead regurgitates testimony from other witnesses. See Mot. at 2. 7 “[C]hallenging the assumptions of an expert witness’ report is a permissible topic of 8 rebuttal testimony.” Pinterest, Inc. v. Pintrips, 2015 WL 2268498 at *1 (N.D. Cal. May 14, 9 2015); see also Space Data Corp. v. Alphabet Inc., 2019 WL 2603285 at *4 (N.D. Cal. June 25, 10 2019) (permitting damages expert to rebut opposing expert’s methodology, “such as opining on 11 what [opposing expert] failed to properly account for in forming her opinions or solidifying her 12 assumptions”). Robroy Indus.-Texas, LLC v. Thomas & Betts Corp. provides a useful framework 13 for applying these principles here. 2017 WL 1319553 (E.D. Tex. Apr. 10, 2017) (“Robroy”). 14 Like this one, that case involved an economist’s rebuttal expert testimony in a false advertising 15 case. Id. at *2. The Robroy court prohibited the expert from “simply parrot[ing] deposition 16 evidence and exhibits produced during the pretrial process” out of concerns that she would: (1) 17 mislead the jury by putting the “imprimatur of her expertise” on the statements of other witnesses; 18 and (2) not be amenable to meaningful cross-examination, since her opinions on the topic would 19 not be the product of her own expertise. Id. at *10-11. However, the court allowed the expert to 20 highlight both the assumptions underlying the opposing expert’s damages estimates and the lack 21 of evidence supporting those assumptions. Id. 22 The Court finds the Robroy approach persuasive. Dr. Vigil may critique the assumptions 23 and data (or lack thereof) underlying Mr. Wagner’s report and testimony. Contrary to Plaintiffs’ 24 view, the Court finds that he generally does so when testifying as to the extent of (and consequent 25 impact on the reasonable measure of damages based on): (1) consumer exposure to, and confusion 26 by, the “Partner the Future” phrase and alleged false statements; (2) consumers’ changed 27 purchasing decisions; (3) Plaintiffs’ harm to goodwill or reputation; (4) Plaintiffs’ development 1 and promotional expenses; and (5) Plaintiffs’ corrective advertising costs. See Dkt. No. 208-3. As 2 such, the Court will not categorically preclude Dr. Vigil from testifying as to those topics. But the 3 Court also will not allow Dr. Vigil to simply summarize evidence produced in the pretrial process, 4 as he appears to do in paragraphs 44; 46(a); 48(b)(i); 48(c); 48(e); 48(f); and 74 of his report. See 5 id. While Dr. Vigil may of course state the information upon which he relied to conduct his 6 economic analysis, the Court will ensure at trial that he does not go further and “put the 7 imprimatur of [his] expertise” on the statements of other witnesses. Robroy, 2017 WL 1319553, 8 at *11. 9 ii. The Parties’ Foreign Lawsuits 10 Plaintiffs also allege that Dr. Vigil’s testimony about the parties’ foreign lawsuits lacks 11 specialized expertise and would be unhelpful to the jury. See Mot. at 14. The Court agrees that 12 Dr. Vigil’s testimony about the “undue harm” Defendant would suffer if Plaintiff collects damages 13 in this case and the European cases is inappropriate. See Vigil Rpt. ¶ 80. For one, it lacks 14 specialized expertise. It does not take a Ph.D. in economics to argue, as Dr. Vigil does, that 15 because the parties are also engaged in litigation in Europe, “allowing Edwards to claim monetary 16 remedies based upon sales outside the U.S. in this matter could allow Edwards to collect claimed 17 damages multiple times.” Id. In addition, part of this opinion improperly imports an assertion as 18 to the governing law.2 See id. (“I also understand from counsel that claiming any sales in Europe 19 as damages in this matter is inappropriate as a legal matter.”). Dr. Vigil may not testify about 20 whether damages from European sales are legally appropriate in this case or the extent to which 21 those damages would cause Defendants undue harm. 22 However, for the reasons explained above, the Court will allow Dr. Vigil to critique the 23 assumptions or alleged lack of data underlying Mr. Wagner’s damages estimate. In the Court’s 24

25 2 Relatedly, Plaintiffs also contend that Dr. Vigil’s testimony about Edwards’ development and 26 promotional expenses is an improper attempt to draw legal distinctions between the facts in this case and the Ninth Circuit’s opinion in Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 27 2012). See Mot. at 12-13. The Court finds that Dr. Vigil’s testimony instead critiques the 1 view, Dr. Vigil does so when he contends that Mr. Wagner has failed to show a nexus between the 2 European sales, which Mr. Wagner claims constitute damages flowing from a Lanham Act 3 violation, and the alleged misconduct. See id. (“From an economic perspective, Mr. Wagner’s 4 ‘alternative’ calculation of Meril’s sales based on all European sales is inappropriate and 5 significantly overstated as he has provided no nexus between all European sales, if any, and the 6 alleged misconduct.”). 7 iii. Dr. Vigil’s Assumption of Liability 8 Plaintiffs also argue that Dr. Vigil goes beyond his role as a damages expert by 9 contradicting his professed assumption of liability. See Mot. at 2. Defendants respond that 10 Plaintiffs have conflated the separate legal concepts of liability and economic damages, and claim 11 that Dr. Vigil assumes liability and instead analyzes the extent of economic damages. See Opp. at 12 1. The Court generally agrees with Defendants, except for Paragraph 46(a) of Dr. Vigil’s report. 13 There, in addition to simply repeating statements by another witness, Dr. Vigil functionally 14 disputes liability when he states his “understanding” that several of Defendants’ statements that 15 are allegedly false and misleading “were, in fact, correct when made.” Vigil Rpt. ¶ 46. Of course, 16 the falsity of Defendants’ statements is a central element of Plaintiffs’ Lanham Act case. See 17 Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997) (“To demonstrate 18 falsity within the meaning of the Lanham Act, a plaintiff may show that the statement was literally 19 false, either on its face or by necessary implication, or that the statement was literally true but 20 likely to mislead or confuse consumers.”). And falsity is measured at the time the statement was 21 made. See Newcal Indus., Inc. v. Ikon Off. Sol., 513 F.3d 1038, 1054 (9th Cir. 2008). Putting 22 these together, the Court does not understand how Dr. Vigil can at the same time assume that 23 Plaintiffs have met their burden of proving that Defendants’ statements were “literally false” or 24 “literally true but likely to mislead consumers” and testify, on the other hand, that Defendants’ 25 statements were unlikely to confuse consumers because they were correct when made. At trial, 26 Dr. Vigil may critique Mr. Wagner’s testimony and analyze the extent of consumer exposure, but 27 the Court will not allow Defendants to use him to relitigate central elements of Lanham Act iv. Meril’s Profit Margin 1 Finally, Plaintiffs claim that Dr. Vigil’s opinion regarding Meril’s profit margin for the 2 Myval heart valve is unreliable and insufficient to meet Defendants’ legal burden of proving 3 which costs should be deducted from Defendants’ gross revenue when determining the amount of 4 profits to disgorge.3 The Court finds that Plaintiffs’ challenge goes to the weight of the evidence 5 rather than its admissibility. Whether Dr. Vigil’s testimony is persuasive is a separate question 6 from whether Dr. Vigil should be allowed to testify at all. And none of the cases Plaintiffs cite in 7 support of their argument involved motions to exclude witnesses under Rule 702.4 The Court will 8 not preclude Dr. Vigil from testifying about Meril’s profit margin on this basis. 9 B. Motions to Seal 10 The parties have also filed administrative motions to seal portions of their briefs and 11 exhibits related to Plaintiffs’ Motion. Courts generally apply a “compelling reasons” standard 12 when considering motions to seal documents. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 13 (9th Cir. 2010) (quoting Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 14 2006)). “This standard derives from the common law right ‘to inspect and copy public records 15 and documents, including judicial records and documents.’” Id. (quoting Kamakana, 447 F.3d at 16 1178). “[A] strong presumption in favor of access is the starting point.” Kamakana, 447 F.3d at 17 1178 (quotations omitted). To overcome this strong presumption, the party seeking to seal a 18 judicial record attached to a dispositive motion must “articulate compelling reasons supported by 19 specific factual findings that outweigh the general history of access and the public policies 20 21 3 Plaintiffs also argue that the Court should preclude Dr. Vigil from testifying as to information 22 which Defendants refused to provide during discovery. See Mot. at 15. Plaintiffs state that they separately intend to move to exclude Defendants from proffering any evidence of their costs, 23 including Dr. Vigil’s opinion on Meril’s profit margin, for failure to produce this information 24 during discovery under Rule 37(c)(1). See id. n.6. The Court agrees that a Rule 37(c)(1) motion is the proper manner of resolving this dispute and will consider Plaintiffs’ motion if one is filed. 25 4 See, e.g., Bambu Sales. Inc. v. Ozak Trading. Inc., 58 F.3d 849, 854 (2d Cir. 1995) (Motion for Summary Judgment); H-D Mich., Inc. v. Biker’s Dream, Inc., 1998 WL 697898, at *6-10 (C.D. 26 Cal. Jul 28, 1998) (Motion for Summary Judgment); Nutrivida, Inc. v. Inmuno Vital, Inc., 46 F. Supp. 2d 1310, 1315-1316 (S.D. Fla. 1998) (Post-judgment Hearing); Audemars Piguet Holding 27 S.A. v. Swiss Watch Int’l, Inc., 2014 WL 47465, at *24 (S.D.N.Y. Jan. 6, 2014) (Bench Trial 1 favoring disclosure, such as the public interest in understanding the judicial process” and 2 “significant public events.” Id. at 1178–79 (quotations omitted). 3 Records attached to non-dispositive motions must meet the lower “good cause” standard of 4 Rule 26(c) of the Federal Rules of Civil Procedure, as such records “are often unrelated, or only 5 tangentially related, to the underlying cause of action.” Id. at 1179–80 (quotation omitted). This 6 requires a “particularized showing” that “specific prejudice or harm will result” if the information 7 is disclosed. Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th 8 Cir. 2002); see also Fed. R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated by specific 9 examples of articulated reasoning” will not suffice. Beckman Indus., Inc. v. Int’l Ins. Co., 966 10 F.2d 470, 476 (9th Cir. 1992) (quotation omitted). 11 The documents at issue in the pending motions to seal relate to Plaintiffs’ non-dispositive 12 motion to preclude expert testimony so the Court will apply the lower good cause standard. 13 i. Dkt. Nos. 207, 218 14 Plaintiffs seek to seal the entirety of Exhibits 1-3 to their Motion to Preclude Certain 15 Testimony of Robert Wagner. See Dkt. No. 207. Exhibit 1 consists of excerpts from the expert 16 report of Mr. Wagner, Exhibit 2 consists of excerpts from the expert report of Dr. Vigil, and 17 Exhibit 3 consists of excerpts from the deposition transcript of Dr. Vigil. Id. Plaintiffs contend 18 that the entirety of Exhibits 1 and 2 contain confidential business and financial information related 19 to their intelligence on competitors, marketing strategies and costs, and development and 20 promotion expenses by product line. See Dkt. 207-2. For their part, Defendants contend that 21 Exhibits 1 and 2 contain the costs and expenses associated with their attendance at certain 22 conferences and costs and profit margins related to their Myval device. See Dkt. No. 218-1. 23 Having reviewed Exhibits 1 and 2 to the Motion, the Court recognizes that significant 24 portions of both exhibits contain confidential cost, expense, and profit information. There is good 25 cause to seal that information. See Gearsource Holdings, LLC v. Google LLC, 2020 WL 3833258, 26 at *15 (N.D. Cal. July 8, 2020) (“Examples of trade secrets include pricing, profit, and customer 27 usage information kept confidential by a company that could be used to the company's competitive 1 2015) (holding compelling reasons existed to seal calculations “derived from sales data on 2 [party’s] infringing products”). However, the Court is not convinced that Exhibits 1 and 2 need to 3 be sealed in their entirety because the reports contain information that is not confidential. Though 4 the redactions to these exhibits may be extensive, particularly for Mr. Wagner’s report, they need 5 not be total. See Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011) (reversing a 6 district court’s order to seal that “inappropriately extended to non-confidential material”). 7 Accordingly, the Parties are directed to file a new targeted request to seal only the specific, 8 identified portions of Exhibits 1 and 2 that contain confidential estimates of costs and profit 9 margin. 10 As to Exhibit 3, Defendants only seek to seal limited portions that include descriptions of 11 Meril’s estimate of costs and profit margin associated with Meril’s Myval product and Meril’s 12 strategy in calculating costs associated with Meril’s Myval product. See id. Having reviewed 13 Exhibit 3, the Court denies Plaintiffs’ motion to seal the entire deposition transcript, see Dkt. No. 14 207, but grants Defendants’ request to seal the identified portions that include confidential 15 estimates of costs and profit margin (188:14; 188:17-23; 189:19-190:24). See Dkt. No. 218. 16 In summary, Dkt. No. 207 is DENIED and Dkt. No. 218 is GRANTED IN PART and 17 DENIED IN PART. 18 ii. Dkt. Nos. 228, 235 19 Defendants’ motion seeks to seal the entirety of Exhibit 2 to Meril’s Opposition, as well as 20 portions of Exhibit 1 and Exhibit 3 to the Opposition, and portions of the Opposition Brief itself. 21 Dkt. No. 228. Plaintiffs seek to seal the entirety of Exhibit 2 to the Opposition, as well as certain 22 portions of Exhibit 3 to the Opposition, and portions of the Opposition itself. Dkt. No. 235. 23 Exhibit 1 to the Opposition consists of excerpts from the deposition transcript of Dr. Vigil. 24 See Dkt. No. 229-2. Defendants contend that the information it seeks to seal in Dr. Vigil’s 25 deposition transcript “reference[s] the Wagner report.” See Dkt. No. 228-1. This is insufficient. 26 Because the portions of the transcript that Defendants’ motion seeks to seal do not reference 27 proprietary or confidential information, the Court finds that there is not good cause to seal portions 1 Exhibit 2 to the Opposition consists of excerpts from the expert report of Michael Wagner. 2 See Dkt. No. 229-3. As before, Plaintiffs seek to seal the excerpt of Mr. Wagner’s report in its 3 entirety. For the reasons explained above, this request is denied. 4 Exhibit 3 to the Opposition consists of excerpts from the deposition transcript of Mr. 5 Wagner. See Dkt. No. 229-4. Although Defendants’ motion seeks to redact almost the entirety of 6 the transcript, Plaintiffs ask only to seal a subset of the portions that Defendants identified in their 7 motion. See Dkt. No. 235-1 at 2. Plaintiffs contend that this subset contains their “highly 8 sensitive business and financial information” that could cause harm if publicly disclosed. Id. at 3. 9 The Court finds good cause to seal the portions of Exhibit 3 that contain Plaintiffs’ intelligence on 10 competitors and confidential market data. The Court accordingly denies Defendants’ motion to 11 redact the entire deposition transcript, see Dkt. No. 228, but grants Plaintiffs’ request to seal the 12 identified portions that contain Plaintiffs’ intelligence on competitors and confidential market data. 13 See Dkt. No. 235. 14 Finally, the parties seek to seal portions of the Opposition Brief itself. Dkt. No. 235. 15 Again, Plaintiffs propose to seal only a subset of the portions of the Opposition that Meril 16 identified in their administrative motion to file under seal. See Dkt. No. 235-1 at 2. The Court 17 rejects Plaintiffs’ position that the Opposition Brief contains “highly sensitive business and 18 financial information.” See Dkt. No. 235-2. Since the portions of the Opposition identified by 19 Plaintiffs simply summarize Dr. Vigil’s critiques of Mr. Wagner’s methodology and do not 20 themselves contain confidential business information, the Court finds that neither party has shown 21 good cause to seal portions of the Opposition brief itself. 22 To summarize, Dkt. No. 228 is DENIED and Dkt. No. 235 is GRANTED IN PART and 23 DENIED IN PART. 24 IV. CONCLUSION 25 Plaintiffs’ Motion to Preclude Certain Testimony of Robert Vigil is GRANTED IN PART 26 and DENIED IN PART. Dr. Vigil may not testify about whether Plaintiffs’ alleged damages 27 from European sales are legally appropriate in this case or the extent to which those damages 1 misstatements were correct when made. Dr. Vigil is not categorically barred from testifying about 2 the matters referenced in paragraphs 44; 46(a); 48(b)(); 48(c); 48(e); 48(); and 74 of his report, 3 || but the Court will ensure at trial that Dr. Vigil only does so while adding independent and 4 specialized expertise. 5 The Motions to Seal are DENIED and GRANTED IN PART and DENIED IN PART. 6 Specifically, Dkt. Nos. 207 and 228 are DENIED and Dkt. Nos. 218 and 235 are GRANTED IN 7 PART and DENIED IN PART. Within seven days of the filing of this Order, the parties are 8 || directed to file public versions of the documents identified above that comport with this Order. 9 IT IS SO ORDERED. 10 || Dated: 11/18/2021 ll Aspe 3 bl) HAYWOOD S. GILLIAM, JR. 12 United States District Judge

© 15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28