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BOSTON — A federal judge imposed sanctions on cancer treatment maker ImClone Systems Inc. and a company in-house attorney for allegedly intimidating a key witness in a patent case brought against the company. In a June 8 ruling, Massachusetts federal judge Richard G. Stearns granted sanctions requested by plaintiff Massachusetts Institute of Technology and awarded costs and attorneys fees associated with bringing the motion. MIT v. ImClone Systems Inc., No. 04-10884 (D. Mass.). Stearns ruled that New York-based ImClone is “prohibited from communicating with” the witness and his employer, Merck & Co. Inc. The court also barred ImClone in-house attorney Thomas Gallagher from accessing or using information covered by the December 2004 protective order, which governs the use of confidential information related to the litigation. During the trial, MIT will be permitted to introduce evidence about ImClone’s attorneys’ alleged misconduct. MIT’s patent case alleges that ImClone’s lucrative cancer treatment drug Erbitux infringes a patent assigned to MIT and licensed to Waltham, Mass.-based drug maker Repligen Corp. In March 2006, MIT filed a motion for sanctions and accused ImClone’s outside counsel Paul M. Richter Jr. of New York-based intellectual property law firm Kenyon & Kenyon of attempting to intimidate an MIT witness in a deposition. MIT said Richter repeatedly asked scientist Stephen Gillies, one of the inventors of the cell line disputed in the patent case, about whether his employer Merck knew of tests that he conducted for the litigation. Using a transcript of the deposition, Gallagher then contacted Merck about Gillies’ use of a Merck subsidiary’s laboratory and employees for testing relating to the litigation. An attorney hired by Gillies then contacted MIT lawyers to say that Gillies would no longer cooperate with MIT. The order will prevent any further intimidation of Gillies, but it’s unclear about whether he’ll be a voluntary witness or under subpoena, said Juanita Brooks, a San Diego-based Fish & Richardson lawyer who represents MIT. “We haven’t been able to have contact with him since this incident,” Brooks said. Gillies could not be immediately reached for comment and the New York-based ImClone did not respond to a request for comment. At the trial, MIT will also be allowed to testify about the improper conduct of ImClone’s attorneys to set the stage for jury instruction that will enable them to “draw an inference that ImClone believed that Dr. Gillies’ 2005 test results supported MIT’s claims in the litigation,” Stearns wrote. In the ruling, Stearns also noted that Gallagher and Richter violated several Massachusetts Rules of Professional Conduct. Gillies could not be immediately reached for comment. Anthony Fitzpatrick, a Boston partner at Duane Morris who represents ImClone, referred questions to the company. Gallagher also referred questions ImClone’s press office, which did not return a call for comment. Kenyon’s attorney Thomas Maffei, of Boston’s Griesinger Tighe & Maffei, said he and his client are studying the order but have no further comment.

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