United States District Court, S.D. California
ORDER DENYING DEFENDANTS' MOTION TO EXCLUDE THE
SURVEY, EXPERT REPORT, AND TESTIMONY OF MATTHEW G. EZELL [ECF
Cynthia Bashant United States District Judge
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.
Relevant Background []
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”).
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.
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 ¶
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
CELL HIGHLIGHTED MATERIAL
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.
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.
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
move to strike Ezell's report and opinions.