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Wyeth, et al v. Abbott Laboratories

September 16, 2011

WYETH, ET AL., PLAINTIFFS,
v.
ABBOTT LABORATORIES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Tonianne J. Bongiovanni United States Magistrate Judge

NOT FOR PUBLICATION

MEMORANDUM OPINION

This matter comes before the Court upon Plaintiffs Wyeth and Cordis Corporation's ("Plaintiffs") motion to amend their Complaint in order to add Abbott Laboratories Inc. ("ALI") as a defendant. Defendants Abbott Laboratories and Abbott Cardiovascular Systems, Inc. (collectively, "Abbott") oppose the addition of ALI as a defendant. The Court has fully reviewed and considered all arguments made in support of and in opposition to Plaintiffs' motion. The Court considers Plaintiffs' motion without oral argument pursuant to FED.R.CIV.P. 78. For the reasons set forth more fully below, Plaintiffs' motion is GRANTED.

I. Background and Procedural History

This is a patent infringement case dealing with United States Patent Nos. 7,591,844 (the "'844 patent"), and 6,746,773 (the "'773 patent") (collectively, the "patents-in-suit"). Plaintiffs sell a drug-eluting stent known as the CYPHER stent, a drug/device combination for the treatment of coronary artery disease, which they claim is covered by the patents-in-suit.

Plaintiffs further claim that Defendants'*fn1 use of the XIENCE V stent (Abbott) and Promus stent (BSC) infringes upon the patents-in-suit. At issue in the current motion is Plaintiffs' request to add ALI, the Abbott entity that apparently sells the allegedly infringing XIENCE V stent in the United States, as a defendant in this matter.

Plaintiffs argue that their motion to add ALI as a defendant is timely, as the Scheduling Orders entered in this case do not establish any deadline for moving to amend the pleadings. Plaintiffs further argue that the addition of ALI is warranted under the liberal standards set forth in FED.R.CIV.P. 15. In this regard, Plaintiffs argue that they did not unduly delay in seeking to add ALI as a defendant and that their failure to add ALI to this litigation earlier in no way resulted from a lack of diligence. Indeed, Plaintiff's claim that, despite having sought to obtain information that should have disclosed ALI's role with respect to the sale of the XIENCE V stent through discovery and despite the fact that Abbott's initial disclosures should have revealed said information, Abbott failed to reveal ALI's role as the seller of the XIENCE V stent in the United States.

For example, with respect to Abbott's initial disclosures, Plaintiffs claim that Rule 26(a)(1)(A)(i) requires a party to identify "the name and, if known, the address and telephone number of each individual likely to have discoverable information -- along with the subjects of that information -- that the disclosing party may use to support its claims or defenses[.]" Similarly, Rule 26(a)(1)(A)(ii) requires a party to describe the location of relevant documents in its "possession, custody, or control" which it "may use to support its claims or defenses."

Plaintiffs argue that despite the fact that ALI was apparently the entity that sold the XIENCE V stent in the United States since its launch in 2008, Abbott did not identify ALI's sales records in its initial disclosures. Plaintiffs also argue that Abbott likewise failed to identify any ALI employee as an individual likely to have discoverable information on which Abbott may rely. As a result, Plaintiffs maintain that there was nothing in Abbott's initial disclosures to suggest that ALI was a potential defendant

With respect to Abbott's discovery responses, Plaintiffs argue that Abbott never claimed that it did not infringe the patents-in-suit because it was not the seller of the XIENCE V stent. Plaintiffs argue that Abbott never made that claim despite the fact that Plaintiffs furnished Abbott with an interrogatory on May 13, 2010, requesting that Abbott "'set forth in detail the complete legal and factual bases for your allegation that you have not infringed the claims of the patents-in-suit.'" (Pl. Br. at 2 (quoting Weiner Decl. Ex. E., Plaintiffs' First Set of Interrogatories to Defendants at Interrogatory No. 1)). Indeed, Plaintiffs note that in response to their interrogatory, Abbott never claimed that another company, ALI, was the actual seller of the XIENCE V stent in the Unites States.

Further, Plaintiffs contend that they attempted to conduct discovery regarding which Abbott entity sold the XIENCE V stent in the United States. For example, Plaintiffs claim that they inquired into Abbott's corporate structure during a 2009 deposition in a different matter.*fn2 _

During that deposition, Abbott's corporate witness identified ALI as a separate legal entity from Abbott Cardiovascular System, but did not testify that it was a separate entity from Abbott Laboratories. On this point, Plaintiffs note that Abbott's corporate witness testified only that ALI had a separate management team from Abbott; the witness did not identify ALI as the entity that was selling the XIENCE V stent in the United States. Moreover, Plaintiffs also note that Abbott's corporate witness was unable to identify what ALI was an acronym for.

In addition, Plaintiffs argue that there was nothing in Abbott's public filings that identified a connection between ALI and the XIENCE V stent. For example, Plaintiffs claim that Abbott's 10-K filings did not identify ALI as the seller of the XIENCE V stent. Similarly, Plaintiffs contend that there is nothing in the Instructions for Use for the XIENCE V stent that references ALI. Instead, the Instructions for Use contain an Abbott Laboratories' copyright.

Likewise, Plaintiffs claim that their past litigation history with Abbott did not put it on notice that ALI sold the XIENCE V stent in the United States. In this regard, Plaintiffs argue that Abbott Laboratories and its subsidiary, Abbott Cardiovascular Systems, Inc., were the sole plaintiffs in an earlier declaratory judgment action against Cordis Corporation ("Cordis") relating to the XIENCE V stent. (See Abbott Laboratories v. Johnson and Johnson, Inc., Civil Action No. 06-613 (D.Del. Sept. 26, 2006)). Plaintiffs further note that the complaint in the declaratory judgment litigation described the XIENCE V stent as "one of Abbott Cardiovascular Systems, Inc.'s ...


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