Harm story fails where deceived doctors’ choices wouldn’t have mattered

Quidel Corp. v. Siemens Medical Solutions USA, Inc., No.
16-cv-3059-BAS-AGS, 2020 WL 4747724 (S.D. Cal. Aug. 17, 2020)

Previously, the
court ruled that alleged misrepresentations, even if false, didn’t affect testing
labs’ choice of which of the parties’ tests to offer, but reserved judgment on
whether they affected physicians’ choices
. Here, the court grants summary
judgment, finding that any falsity could not have caused cognizable harm
because of the ways that physicians order tests.

The parties produce competing assays (blood tests) used for
measuring thyroid stimulating immunoglobins, which can aid in the detection of
Graves’ disease. There are two relevant types of assays available: (1) TSH
receptor antibody (TRAb) assays, which detect both stimulating and blocking
thyroid immunoglobins (TSI and TBI) and which are therefore apparently less
useful and (2) TSI only assays. In Quidel’s opinion, Siemens’s product doesn’t
distinguish between stimulating or blocking antibodies, but it was advertised
as a TSI only assay.

Physicians order tests from labs for their patients, and labs
carry one “TSI only” test at a time. Physicians’ deference to labs, versus
picking a lab because it carries a specific test, apparently varies. Labs pay Quidel
and Siemens for the tests. If a doctor requests a test from a lab without
specifying, and relies instead on the lab to picks, Quidel couldn’t be damaged
by the lab’s use of the Siemens test because, as the court already ruled, the
lab did not rely on any allegedly false advertising to cause it to carry the
Siemens test. If the doctor wanted Quidel’s product but used Siemens’s because
the lab only carried the latter, again Quidel wouldn’t have been damaged by the
false advertising. And if the doctor would only use Quidel’s product and picks
labs with that in mind, again there’s no damage.

Quidel argued that there were doctors who wanted to use
Siemens’s product because of its allegedly false advertising, and who thus
chose a Siemens-using lab. But the court found that “Quidel cannot claim that
its damages are caused by the lab carrying the product which in turn leads to
the physicians ordering the product from the lab.” But: if there are doctors
who did pick Siemens over Quidel, why wouldn’t that be harm causation from the allegedly
false advertising even if the labs were waiting to supply them? The court
responds: this is a previously undisclosed damages theory. Quidel originally claimed
damages based on the labs’ switching tests, not any doctors. Quidel’s
damages expert didn’t  consider the
actions of individual physicians in his damages evaluation. This wasn’t a
harmless omission, since it deprived Siemens of the chance to develop
information about individual doctors. And even if the theory had been adequately
disclosed, it didn’t have supporting evidence that doctors were influenced or
that labs consider physician preference in determining which test to carry.

Quidel argued that it did have evidence that individual
clinicians were misled: Siemens and labs received inquiries from clinicians
regarding whether the Siemens product could differentiate between TSI and TBI,
and they didn’t disclose the (alleged) truth. But that still wasn’t proof that
the doctors acted on what the labs did or didn’t say.  

Quidel’s evidence of its corrective advertising expenses
were also insufficient because Quidel had to show it suffered likely injury
before it could claim corrective advertising damages. “If the false statements
have no material impact, there is nothing to correct.”

Nor would the court presume injury because of the parties’
direct competition plus a likelihood of deception from comparative advertising,
as the Ninth Circuit has said can be done. The challenged advertising didn’t
compare the parties’ products; instead, it continually contrasted Siemens’
product with TRAb assays. The market isn’t a two-player market. Without comparative
advertising, “injury to a particular competitor may be a small fraction of the
defendant’s sales, profits, or advertising expenses.” In such cases, “actual
evidence of some injury resulting from the deception is an essential element of
the plaintiff’s case.” Here, “[i]f TSI only assays are substantially better than
TRAb assays, as both parties claim, then Siemens could be making sales to those
who used to use TRAb assays but switched over to using [its product].”

No presumption of injury. Also, no injunctive relief: though
proof of “injury” wasn’t required for injunctive relief, “irreparable harm” was.
And Quidel’s only claimed harm was monetary: lost sales.

from Blogger https://ift.tt/2QkRfRz

This entry was posted in Uncategorized and tagged . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s