David Wille of Baker Botts. (Courtesy photo)
For 13 years, a small medical device company named Lexion Medical has relied on Dallas attorney David Wille to protect its intellectual property rights. And after building a case that a competitor’s false statements caused Lexion’s sales to tank, Wille persuaded a Delaware jury to award $12.2 million in damages in favor of his client.
Lexion sold a device that delivers heat and humidified carbon dioxide into the abdomen, causing it to expand during laparoscopic surgery, which offers increased health and safety benefits, Lexion has said. Lexion’s competitor, SurgiQuest, sold another device, called the AirSeal system, which uses different technology to serve the same function during laparoscopic surgery.
Lexion enjoyed steady sales of its device until SurgiQuest began advertising and making claims on its company website that its AirSeal system was interchangeable with Lexion’s product. Lexion took offense.
“I actually wrote [SurgiQuest] a letter saying you need to take this off your website,” said Wille, a partner in Baker Botts who had previously represented Lexion in patent litigation. “Lexion started losing sales because they said their product did the same thing.”
SurgiQuest refused to back down, the dispute became bitter, and Lexion sued its rival in a Minnesota federal court in 2013 for false advertising. SurgiQuest hit Lexion back with a trade infringement claim in a Delaware federal court. Lexion’s Minnesota case was ultimately dismissed for lack of personal jurisdiction, so they moved their false advertising claims over to the Delaware case in 2014.
In 2015, SurgiQuest was acquired by medical giant ConMed for $265 million. And suddenly Lexion’s fight got a lot tougher as its opponents added a big legal team lead by Washington, D.C., attorney Frank Ryan of DLA Piper, who had just won a huge, hotly contested patent victory on behalf of Covidien in another medical device dispute.
“It was small company against a slightly bigger company, but it turned into small company versus a huge company,” Wille said.
And the weeklong trial didn’t start out well as Wille’s first witness, his company’s CEO, got crossways with the trial judge for the way he answered questions, prompting sidebar conversations at the bench. But the litigation smoothed out as Lexion’s expert witnesses testified that SurgiQuest’s product did not perform as claimed, Wille said.
“It’s complex stuff. It required expert testimony from both surgeons and engineers,” Wille said. “There were very good lawyers on the other side.” And by the third day of trial, a total of 20 witnesses testified about the sales of the competing products — all by video, Wille said. Wille said he made his points quickly with the video testimony.
“When you’re presenting that much video testimony it needs to be short and understandable. Otherwise the jury is going to go to sleep with that many videos,” Wille said. “This jury was attentive.”
On April 11, the jury returned a verdict in Lexion’s favor by finding that SurgiQuest was liable for three instances of false advertising. The jury awarded $2.2 million in lost profit damages and another $10 million in punitive damages.
“We hope proving this in front of a jury will prove to people that no, their device doesn’t do what it says it does,” Wille said.
Ryan did not return a call for comment.
Patrick Spearman, Lexion’s CEO, said Wille and his trial team did an excellent job.
“We have now gone to trial in two cases with them. They are capable of handling complicated scientific matters and presenting the information to the jury in an understandable way,” Spearman said. “That was true of both our patent litigation and this false advertising litigation.”