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While Dickstein Shapiro partners back in Washington were celebrating the news that they had won a victory for their client that could result in $130 million in legal fees, partner Gary Hoffman was stuck in an airport on Feb. 12, waiting for a flight home from Houston. Less than 24 hours earlier, a jury in the U.S. District Court for the Eastern District of Texas ruled that Boston Scientific Corp. infringed on a 1997 patent by Bruce Saffran for a thin sheet of fabric that delivers medication to injured body parts. The jury awarded the New Jersey radiologist $431.9 million in damages. “It feels fantastic,” says Hoffman. “We’ve been working on this case a long time.” The feeling would only get better. Later in the week, Judge T. John Ward added more than $69 million in pre-judgment interest to the verdict, bringing the total judgment to more than $501 million — meaning total legal fees could top $150 million. The Boston Scientific win is believed to be the largest the firm has won since a series of confidential settlements involving the vitamin industry beginning in 2002 that totaled more than $2 billion. In the vitamin case, the firm represented 153 corporations injured by a price-fixing conspiracy. As in the vitamins case, Dickstein took the Boston Scientific work on contingency. While most major law firms back away from contingency cases because legal fees are only paid if the client wins, Dickstein had decided the risk was worth the investment. Hoffman was the co-lead counsel, along with Eric Albritton, name partner of Longview, Texas’ Albritton Law Firm. Dickstein’s legal team also included Washington partners Paul Taskier and James Brady Jr. Boston Scientific was represented by Richard DeLucia, a New York-based partner at Kenyon & Kenyon. DeLucia declined to comment. Hoffman says that Boston Scientific refused to discuss a settlement throughout the case. “They told us we had no chance of winning,” says Hoffman. “Any time we would talk to them about the case, they told us we had no chance.” After a one-week trial, Hoffman says, it took only about two hours of deliberation for the jury to find in favor of Dickstein’s client and award the exact amount of damages Dickstein lawyers requested. Boston Scientific has promised an appeal, saying in a press release the verdict was “unsupported by both the evidence and the law.” The Natick, Mass.-based company added that it would not record the verdict on its annual books because it is confident the trial judge or an appeals court will throw out the verdict. If Ward lets the verdict stand, then the case, which was filed in 2005, would wind up at the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. Hoffman says that could delay a final outcome for 18 months. “It’s clearly a significant win,” says Dickstein’s chairman, Michael Nannes. “But we haven’t spent it yet.” “The best way to make rabbit stew is to catch the rabbit,” Nannes adds. “And we don’t have that rabbit yet.” Hoffman and his team are also representing Saffran in a similar patent infringement case that is pending against Johnson & Johnson Inc. Filed in October 2007 in the Eastern District of Texas, that case is also being handled on a contingency basis. Hoffman says Boston Scientific has approximately 55 percent of the market for producing the drug-eluting stent that Saffran is contesting. According to Hoffman, Johnson & Johnson controls the remaining market. The Johnson & Johnson case, which is also pending before Ward, has not yet started discovery.
Nathan Carlile can be contacted at [email protected].

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