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Quidel Corp. v. Siemens Medical Solutions USA, Inc.

United States District Court, S.D. California

October 21, 2019

QUIDEL CORPORATION, Plaintiff,
v.
SIEMENS MEDICAL SOLUTIONS USA, INC., et al., Defendants.

          ORDER DENYING DEFENDANTS' MOTION TO EXCLUDE THE SURVEY, EXPERT REPORT, AND TESTIMONY OF MATTHEW G. EZELL [ECF No. 135]

          Hon, Cynthia Bashant United States District Judge

         Plaintiff Quidel Corporation and Defendants Siemens Medical Solutions USA, Inc. and Siemens Healthcare Diagnostics Inc. have each retained expert witnesses to opine on portions of this litigation. One of Plaintiff's experts is Matthew G. Ezell, who conducted a survey and wrote an expert report based on his findings from the survey. Defendants seek to exclude the survey, report, and testimony of Mr. Ezell. (“Mot., ” ECF No. 135.) For the foregoing reasons, the Court DENIES the Motion.

         I. Relevant Background [[1]]

         Plaintiff and Defendants each manufacture and sell assays (blood tests) that can aid in the detection of Graves' disease. Plaintiff sells the Thyretain Bioreporter TSI Assay (“Thyretain”), and Defendants sell the IMMULITE 2000/2000 XPi TSI Assay (“IMMULITE”).

         Plaintiff alleges Defendants have engaged in false advertising and unfair competition due to Defendants' advertising of IMMULITE. Plaintiff's claims stem in part from a statement on Defendants' website that says IMMULITE detects “TSI only.” A “TSI only” assay is one that detects only thyroid stimulating immunoglobins (“TSI”), as opposed to an assay that fails to differentiate between thyroid stimulating and thyroid blocking immunoglobins (“TBI”). Assays that are unable to differentiate between TSI and TBI are called “TRAb” assays. Plaintiff alleges IMMULITE is not a “TSI only” assay, and that Defendants' false advertising caused customers to purchase Defendants' product over Plaintiff's product and thus damaged Plaintiff.

         Plaintiff engaged Mr. Ezell to conduct a consumer survey and provide expert opinion regarding Plaintiff's allegations that “Siemens' literally and deliberately false statements influenced the ‘purchasing decisions' of the relevant audience of Siemens' misstatements.” (“Opp'n, ” ECF No. 175, at 2.) Ezell surveyed “physicians that specialize in endocrinology and who, as part of their practice, order assay tests to assist in patient diagnosis.” (“Ezell Report, ” Exhibit 12 to Declaration of Erik Haas, ECF 135-3, at ¶ 7.)

         For the survey, Ezell asked a test group of physicians to review an excerpt from Defendants' website regarding IMMULITE, and he asked a control group to review an edited excerpt. (Ezell Report at ¶ 17.) The test group reviewed the following excerpt:

         TEST CELL HIGHLIGHTED MATERIAL

         The I MMULITE5 2000/2000 XPi TSI assay is the first automated and semiquantitative TSI assay available today. TSH receptor antibody (TRAb) assays detect both thyroid-blocking and -stimulating antibodies. However, blocking antibodies inhibit TSH stimulation of thyroid cells and lead to hypothyroidism. The IMMULITE 2000/2000 XPi TSI assay detects thyroid stimulating antibodies, the specific cause of G D pathology, with 98.5% specificity.

         Image Omitted

         The respondents were asked what message(s) were communicated by the material they viewed. (Id.) They were then asked if the material communicated “anything about IMMULITE assay's ability to detect TSI only” and if so, what. (Id.) They were then asked whether they understood that IMMULITE does or does not detect TSI only, or whether IMMULITE is a TRAb assay. (Id.) They were also asked open-ended questions about what the material communicates about whether IMMULITE detects TSI only and about IMMULITE's ability to detect TSI only. (Id.) They were then asked whether they were likely to order both a TSI only and TRAb assay, and why. (Id.)

         Ezell concluded that approximately 67.42% of the relevant universe is likely to be misled or deceived by Defendants' false message. (Id. ¶ 8.) He defined a “false message” as one that states IMMULITE is a TSI assay, detects TSI only, or is not a TRAb assay. (Id. ¶ 19.) He concluded that Defendants' webpage is likely to mislead a substantial portion of the relevant universe “into believing (1) that Defendants' IMMULITE Assay is a ‘TSI assay,' (2) that Defendants' IMMULITE Assay detects only thyroid stimulating antibodies, and/or (3) that Defendants' IMMULITE Assay is not a TRAb assay.” (Ezell Report at ¶ 9.)

         Defendants move to strike Ezell's report and opinions.

         II. ...


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