Experts Play Key Role in Unfair Trade Practices Dispute

Commercial Expert WitnessCase: Ferring Pharms., Inc. v. Braintree Labs., Inc., 2016 U.S. Dist. LEXIS 131489 (D. Mass. Sept. 23, 2016)

Factual Background:

This case concerned two pharmaceutical companies that had competing products used for bowel cleansings before colonoscopies. Defendant Ferring Pharmaceuticals, Inc. (“Ferring”), a Delaware corporation based in Switzerland, advertised and sold “Prepopik,” which was used to prep for colonoscopies. Plaintiff Braintree Laboratories, Inc. (“Braintree”), a Massachusetts corporation with its principal place of business in Braintree, Massachusetts, advertised and sold “Suprep” which was also used prior to colonoscopies.

In October, 2013, Ferring filed a complaint against Braintree for unfair trade practices. A series of motions and counter-claims followed, and eventually Ferring made a counter-claim stating that Braintree engaged in false advertising in violation of the Lanham Act and unfair trade practices in violation. Ferring also alleged that Braintree diluted Ferring’s trademark in Prepopik by suggesting that Prepopik presents the same risks as Pico-Salax, a chemically identical product sold in Canada.

In response, Braintree also filed motions in limine to exclude the testimony of Ferring’s expert witness, Dr. Gerald Bertiger and Philip Johnson, with respect to whether physicians were deceived due to the allegedly unfair business practices of Braintree.

Expert Witnesses:

1. Dr. Gerald Bertiger

Ferring intended to call Dr. Gerald Bertiger as an expert witness. Dr. Bertiger was a gastroenterologist who had 30 years of experience in the field and has conducted over 25,000 colonoscopies himself. According to Dr. Bertiger’s expert report, he was set to offer testimony regarding whether Braintree’s advertisements for Prepopik were materially false.

Braintree asserted that insofar as Dr. Bertiger’s testimony involved speculation about the perceptions of other doctors, his testimony should be excluded. Braintree contended that Dr. Bertiger only spoke with a few salespersons and doctors who were aware of the advertisements at issue, essentially asserting that Dr. Bertiger lacked sufficient foundation to testify broadly regarding perceptions of the advertisements. Braintree’s objection focused on a few exchanges that occurred during Dr. Bertiger’s deposition. Braintree carefully limited its objection and did not question Dr. Bertiger’s expert qualifications or other testimony.

2. Philip Johnson

Ferring also planned to call Philip Johnson as a rebuttal witness in response to Braintree’s market research expert, Robert Klein. Mr. Klein had designed and conducted three surveys for Braintree that examined 1) doctors’ beliefs regarding the accuracy of certain sources of information about drugs, 2) the information gastroenterologists utilize from a comparison detailer Braintree published about Prepopik and 3) the information that a Prepopik advertisement communicates. Mr. Klein also wrote a report as to his conclusions based on his surveys. Just like Mr. Klein, Mr. Johnson was a market research expert.

Braintree contended that Mr. Johnson’s testimony that Braintree’s comparison detailer indicated to readers that Prepopik was neither safe nor effective was unreliable because the survey at issue did not include a control group that measured the beliefs of survey takers before they participated in the study. Braintree further complained that Mr. Johnson offered testimony that was meant to assist Ferring in its case-in-chief, and therefore was not proper rebuttal testimony.


The Court found that Braintree’s objection was basically about striking very limited portions of Dr. Bertiger’s testimony for a lack of foundation. The First Circuit Court of Appeals had previously allowed expert testimony regarding how individuals make decisions in a specialized field in other cases. The Court believed that while the Court assumes the role of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand, such a determination is better suited for trial. Consequently, the Court denied Braintree’s motion to strike Dr. Bertiger’s testimony regarding physician perceptions without prejudice.

The Court also found that Braintree’s objections towards Mr. Johnson’s testimony were without merit. Mr. Johnson has an M.B.A. from the University of Chicago and had apparently overseen hundreds of surveys regarding consumer perceptions. He offered permissible expert testimony under Federal Rule of Evidence 702 that called into question the conclusions of Braintree’s expert, Mr. Klein.

Moreover, the Court found that Braintree’s objections to Mr. Johnson’s testimony were contradictory. Braintree argued that Mr. Johnson’s testimony formed new, rather than rebuttal conclusions, but also that Mr. Johnson could not submit his conclusions because he did not use a control group. Mr. Johnson presumably did not use a control group because, instead of conducting studies of his own, he had limited his testimony to rebutting Mr. Klein’s studies. The Court stated that Braintree could not stack the cards in their favor by both arguing that Mr. Klein is not a rebuttal witness and that he should have conducted his own study. Therefore, the court decided to permit Mr. Johnson to testify, and denied the motion to exclude Mr. Johnson’s testimony.


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