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Thomas T. Aoki, M.D., An Individual, et al v. Gregory Ford Gilbert

June 26, 2012

THOMAS T. AOKI, M.D., AN INDIVIDUAL, ET AL., PLAINTIFFS,
v.
GREGORY FORD GILBERT, AN INDIVIDUAL; BIONICA, INC., A NEVADA CORPORATION; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Through the present action, Plaintiffs Thomas Aoki, M.D. ("Aoki"), and Aoki Diabetes Research Institute ("ADRI") (collectively, "Plaintiffs") allege a variety of causes of action arising around the development, patenting, and licensing of therapies intended for the treatment of diabetes. Pending before the Court is Plaintiffs' Motion to Disqualify Defendant Gregory Gilbert ("Gilbert") and affiliated counsel James L. Brunello ("Brunello") as counsel for several of Gilbert's co-Defendants.

For the following reasons, Plaintiffs' Motion is DENIED without prejudice.*fn1

BACKGROUND*fn2

A. Plaintiffs' version of the facts.*fn3

Aoki, a physician licensed to practice in California, founded ADRI in 1986 to further his research efforts into the areas of diabetes and metabolism. ADRI also provides some clinical care using an intravenous insulin therapy called metabolic activation therapy or MAT® treatment. Aoki is the sole inventor and developer of, and has received a patent for, that treatment.

During development of the therapy and thereafter Aoki and ADRI also developed trade secret know-how related to the use and application of that technology. In addition, Aoki developed additional treatment-related methods and systems for which he obtained further patents (collectively, all above patents are referred to as "the Patents"). Aoki purportedly licensed use of the Patents to ADRI.

According to Aoki, at some point he retained Gilbert, a California attorney, to act as his personal counsel. At the same time, Gilbert became engaged in business transactions with Aoki and set up legal entities, including ADRI, to exploit Aoki's technology. Gilbert acted as counsel for those legal entities as well. In fact, Gilbert purportedly drafted nearly every legal document for both the entities and for Aoki and provided legal advice to Plaintiffs over the course of many years, until their relationship dissolved in late 2002 or early 2003.

After Plaintiffs' relationship with Gilbert ended, Gilbert allegedly proceeded to falsely assert that he, or entities with which he is affiliated, holds all right, title and interest in the MAT® treatment. More specifically, Gilbert purportedly acted in concert with the remaining Defendants to set up clinics where the MAT® treatment is now offered. Gilbert also allegedly made false and misleading statements to patients or would-be patients regarding the status and efficacy of the MAT® treatment as well as regarding available payment options.

Plaintiffs thus filed this action bringing claims against all Defendants for patent infringement, copyright infringement, trade secret misappropriation, false and misleading advertising, and unfair competition. In addition, Plaintiffs allege breach of fiduciary duty and breach of confidential relationship claims against Defendant Gilbert alone.

When Gilbert responded to the Complaint*fn4 on behalf of himself and several of his co-Defendants, Plaintiffs filed their instant Motion seeking to disqualify him from appearing in this case.*fn5 According to Plaintiffs, disqualification is warranted given "Gilbert's nearly 20-year history as the personal attorney for Dr. Aoki and general counsel for ADRI, during which he involved himself in nearly every aspect of the business which is the subject and foundation of this lawsuit." Motion, 1:9-12.

In support of their Motion, Plaintiffs submitted a 2003 email, purportedly drafted by Gilbert, indicating he believed Aoki had "personally been [his] client for many, many years."*fn6

Declaration of Thomas T. Aoki, M.D. ("Aoki Decl."), ¶ 2, Exh. A. Plaintiffs also provided a declaration, signed under oath in 2004, in which Aoki claimed that:

Gilbert served as [his] personal legal counsel, assisting [him] in various ways, including review of legal documents, drafting and preparation of legal documents, legal advice, and representing [him] in various disputes with other person(s) and entity(ies). Gilbert represented [Aoki] in a dispute with a Dr. ...


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