Boston Scientific's JMOL Granted as to Several Products in Medtronic Case

Medtronic v. Boston Scientific Corp., 2:06cv078-TJW (E.D. Tex. July 11, 2008)
Judge: T. John Ward
Holding: Defendant's Motion for Judgment As A Matter of Law Par. 5 GRANTED
Two days after Boston Scientific lost all of its post-trial motions before Judge Ward in the Saffran case, which result in to $501 judgment earlier this year, it fared better with the same judge on claims arising out of its $250 million loss earlier in the year.
The first claim was that JMOL was appropriate as to the accused products not tested by the plaintiff's expert.  Plaintiff argued that the cost of testing all the accused products could have exceeded two million dollars, to which Judge Ward observed that not all sizes needed to be tested, and in any event, you may have to break a couple of eggs when you're asking for 20 dozen.  Judge Ward concluded that "[f]or the accused products not tested by Mr. Sheehan, or otherwise shown to meet the relevant claim limitation, the jury was not presented with any evidence upon which to base a finding of infringement. As a result, a reasonable jury would not have a legally sufficient evidentiary basis to find that the untested products infringe the Anderson patent. For these reasons, the court GRANTS BSC’s JMOL No. 5 with respect to the untested catheters."
Next, BSC argued that the infringement finding should be set aside where the expert's measurements put the product outside the range of what he claimed constituted infringement.  Concluding that the plaintiff had not adduced expert testimony to support its infringement claims as to these products, Judge Ward granted the JMOL on these two catheters as well.
What effect does this ruling have?  To quote Jim Belushi in that masterpiece of Western cinema About Last Night "At this point, we don't know."  Judge Ward directed the parties to submit a proposed reduction to the damages award within 10 days.  And of course the rest of BSC's JMOL remains pending.