When the motion first came on, Biocraft asked for an adjournment of 3 months for discovery. The court allowed one month, and it was eventually adjourned for more than a month beyond that.
If there were some genuine issue for trial, this was ample time to obtain and present it. Discovery from the adversary is not the only source of information. Considerable information can be obtained from generally available sources at much less expense, and more rapidly, than by formal discovery. Considerable information is published, as in the PDR. Salesmen in the field, who are in contact with customers, are prime sources of what the competition is doing.
A witness like Dr. Taylor, who claims to be Director of the Office of Medical Care Standards of the Health and Hospital Corporation of New York with 17 institutions and more than 10,000 beds, or the Corporation's purchasing agent, must have information about who is marketing amitriptyline HCL and in what colors and doses. The same is true of Mr. McHugh, president of Retired Persons Services, Inc., and Mr. Scharr, who has been with the NRTA/AARP pharmacy in Hartford since 1972, and whose facility buys preferably from manufacturers rather than wholesalers.
All three affidavits are couched in generalities. None addresses the specific subjects involved in the case. None addresses whether they would buy the product made by Phillips-Roxane for SK & F if it were the least expensive, even though the color code is different than Merck's.
Biocraft's exhibit of yellow, peach/salmon and orange anti-depressants had no samples in blue, brown or mauve, yet it could not explain why they were not on the chart even though Biocraft itself makes those colors. See June 16 transcript, pp. 135-136. The response was that Biocraft had limited discovery. Yet, it obviously needed no discovery to know what it made itself.
A reading of the September 27, 1977 deposition of Harold Snyder (President of Biocraft) discloses that he has adequate background and experience in the field to know where and how to gather information without discovery, including the ability to obtain samples of competitors' products by purchase from drugstores as a pharmaceutical manufacturer (i.e., without prescription), see Tr. p. 35, and including access to customers, which include distributors and chain drug stores among others, Tr. pp. 18-19.
The clear impression from the hearing was that the claim of inadequate discovery time was raised for the purpose of delay, and the court so finds. This is not a case where the motion was heard without opportunity for discovery. Nearly 3 months elapsed from when the motion was served; adjournments were allowed for discovery, and the time allowed was adequate not only for that purpose but also to gather information that should have been easily available, if it existed, without discovery.
On this aspect of the case, the court finds that Biocraft was afforded adequate time. The fact that it was unable to produce anything to show the existence of a genuine issue of a material fact shows, if anything, that there is no such issue to present, not that more time was needed.
The Answers to Interrogatories.
Among the materials before the court on the motion was the fact that documents had been produced to Biocraft on document request, and answer to interrogatories related thereto. The documents themselves were reports of market surveys to ascertain the existence of any passing off of product imitating or copying Merck's trade dress for Elavil *.
At first, Biocraft argued that Merck could not rely on its own answers to interrogatories propounded by Biocraft because the answers were self-serving. When the court pointed out that party testimony and party affidavits are also "self-serving", yet admissible, Biocraft advanced the argument that the answers were not on personal knowledge. In any event, Biocraft was allowed an opportunity to submit a memorandum, which it did.
Biocraft cites Schwartz v. Compagnie General, etc., 405 F.2d 270 (CA2, 1968); S & S Logging Co. v. Barker, 366 F.2d 617 (CA9, 1966); H.B. Zachry Co. v. O'Brien, 378 F.2d 423 (CA10, 1967); and Maryland v. Hatch, 198 F. Supp. 1 (D.Conn.1961).
The Maryland decision, of course, reflects what was common practice in many courts before the 1963 amendments added answers to interrogatories to the materials to be examined on a Rule 56 motion.
In Schwartz, the answer did not present a fact at all, besides which there was no verification. The other cases generally support the proposition that any material of a fact nature must be such as to be "admissible". This is not the same thing as requiring that it be on "personal knowledge".
There are many forms of proof that are "admissible" evidence despite the fact that the witness or affiant does not have personal knowledge of the fact testified to, even in criminal cases. For a very recent discussion by the Supreme Court of the United States, see Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) where the court observed (448 U.S. at 62, 100 S. Ct. at 2537, 65 L. Ed. 2d at 605) that "The basic rule against hearsay, of course, is riddled with exceptions developed over three centuries."
While it is not necessary to decide the point on the present motion, as noted below, the documents are evidently test survey results, for which the foundation usually is Fed.Ev.Rule 803(6), since market surveys are generally conducted by shoppers under the supervision of some employee in charge of the program. Where that foundation is not shown, then they may well be admissible under Fed.Ev.Rule 803(24).
It is no more necessary to bring in individual shoppers from various parts of the country to personally establish individual instances of passing off, than it would be to call in laboratory technicians who conducted individual tests reported in laboratory notebooks, or salespeople who made particular sales recorded and reflected in a party's books of account. Even individual sales slips are often not retained at all after the transaction has been posted in books of account.
The question arose indirectly at the hearing when Biocraft made the assertion that "In this case there is absolutely no evidence of record of palming off," Tr. of June 16, 1980, p. 151, line 25 to p. 152 line 1. The court then asked whether there wasn't an interrogatory about field sampling, and it turned out that there was, in Interrogatory 3 of Biocraft's third set and Interrogatory 9 of its current set, that the answer given in May summarized the results of the field sampling, noting that in a Florida survey 26.6% of the pharmacies substituted another product for Elavil *, and that 73.9% of the generics used were illegally labelled as "Elavil *" or "Elavil * substitute". The test reports themselves had been supplied on document request, they had been looked at but not studied, and Biocraft could not or would not say what they showed. See Tr. of June 16, 1980, p. 152, line 3 to p. 157, line 4. The interrogation of counsel is one of the tools the court is expected to use on a motion for partial summary judgment such as this, see Fed.R.Civ.P. 56(d).
In any event, the colloquy indicates that when the claim was made that there was "absolutely no evidence" of palming off, it became clear that the assertion did not mean what it seemed to say. Evidence of palming off had been provided, whether admissible in that form or not, and Biocraft ignored it claiming lack of time and the like.
This posture is similar to that taken by Mr. Harold Snyder, Biocraft's president, at his 1977 deposition. Having testified that he chose pill sizes about the same size as Merck's, and having asked Colorcon, who manufactures the coatings to get close to Merck's colors, tablet by tablet and size by size, he was asked whether it ever dawned on him that some druggists might just substitute Biocraft's product for Merck's. After some sparring and hedging, he said:
"A. You're asking me a question if I care; if they're doing it legally, that's fine. If they're not doing it legally, that's their problem. I care about it that they do it legally."