Although Roy Hardin and his team scored a $113 million jury verdict for a client that makes syringes, he downplays the importance of the large dollar figure.
“The money is the money,” says Hardin, a partner in Locke Lord in Dallas, about the Sept. 19 win in Retractable Technologies Inc., et al. v. Becton Dickinson and Co. For Retractable Technologies Inc. and its founder, the bigger point of the litigation was health-care providers’ safety, he says.
Ultimately, Hardin says, his clients want to curb what the Centers for Disease Control and Prevention in Atlanta says are 800,000 accidental sticks that happen at hospitals in an average year.
Hardin led a team of lawyers in the antitrust and false advertising suit against rival syringe manufacturer Becton Dickinson and Co. (BD). U.S. District Judge Leonard Davis of the Eastern District of Texas could treble the damages.
A press release about the verdict includes a statement by Jeffrey S. Sherman, BD general counsel: “We’re disappointed with the portion of the verdict that favored RTI, and we believe this aspect of the verdict was erroneous. We will file an appeal at the earliest opportunity.”
Hardin expects his clients “to seek injunctive relief to open market access and halt and correct false advertising and deception.” Retractable, which has only about 5 percent of the syringe market, can get more of its safety syringes to health-care providers, Hardin says.
Many pleadings were filed under seal in the case. But the verdict form asks the jury several questions. Did BD monopolize the markets for safety syringes, conventional syringes or safety IV catheters? Did BD have the intent to monopolize the same markets? Did BD engage in restraint of trade or exclusive dealings in those same markets? And could four of BD’s specific advertising claims be deemed “false” under the Lanham Act?
The jury answered “no” to most of those questions. But the jury agreed that BD’s intent was to monopolize the safety-syringe market and that all four of the advertising claims presented would be deemed false under the Lanham Act. The jury also calculated that $113 million equaled the damages Retractable had suffered as a result of BD’s “deception.”
The two syringe-selling companies have waged a legal war for more than a decade, which most likely will continue. In a market manipulation case that Retractable filed against BD, the defendants agreed to pay Retractable and its founder $100 million to settle one week before a trial was scheduled in 2004.
In a still-pending patent infringement case that Retractable and its owner filed against BD related to the same syringe technology, the plaintiffs won a $5 million jury verdict in 2009, which BD has appealed.
The defense team includes David Beck of Houston’s Beck Redden, Sam Baxter of McKool Smith in Tyler, and Robert Atkins of New York’s Paul Weiss Rifkind Wharton & Garrison. A call to Atkins was returned by company spokesman Colleen White, who refers to the press release about the verdict.