Free Memorandum in Opposition - District Court of California - California

Case 5:08-cv-00133-RMW

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1 Henry C. Su (SBN 211202; [email protected]) Katharine L. Altemus (SBN 227080; [email protected]) 2 HOWREY LLP 1950 University Avenue, 4th Floor 3 East Palo Alto, California 94303 Telephone: (650) 798-3500 4 Facsimile: (650) 798-3600 5 Robert Ruyak Matthew Wolf 6 Marc Cohn HOWREY LLP 7 1229 Pennsylvania Avenue, NW Washington, DC 20004 8 Telephone: (202) 783-0800 Facsimile: (202) 383-6610 9 Attorneys for Plaintiffs 10 HOLOGIC, INC., CYTYC CORPORATION and HOLOGIC LP 11 12 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C08 00133 RMW (RS) PLAINTIFFS' OPPOSITION TO OBJECTIONS AND MOTION TO STRIKE CERTAIN PORTIONS OF THE DECLARATION OF GLENN MAGNUSON Date: April 21, 2008 Time: 2:00 p.m. Courtroom: 6, 4th Floor Judge: Hon. Ronald M. Whyte

14 HOLOGIC, INC., CYTYC CORPORATION, and HOLOGIC L.P., 15 Plaintiffs, 16 vs. 17 SENORX, INC., 18 Defendant. 19 20 21 22 23 24 25 26 AND RELATED COUNTERCLAIMS.

Hologic hereby opposes SenoRx's objections and motion to strike portions of the Declaration1 of Hologic's Senior Director of Product Marketing for its Interventional Breast Solutions Unit. Because SenoRx's motion relies only on inapplicable law, it should be denied.

Declaration of Glenn Magnuson In Support of Plaintiffs' Motion For Preliminary Injunction 27 ("Magnuson Declaration") 28
Plaintiffs' Opposition to Objections and Motion to Strike Portions of Magnuson Decl. Case No. C08 00133 RMW (RS) -1-

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ARGUMENT SenoRx's motion is fatally flawed; it has failed to apply the evidentiary standards applicable in

3 the preliminary injunction context. Rather than rely on standards applicable to preliminary injunctions, 4 SenoRx cites Federal Rule of Civil Procedure 56(e), pertaining to declarations in the summary 5 judgment context. Indeed, SenoRx cites Rule 56(e) no less than eight times in its six-page motion and 6 every one of the cases it cites in its motion also pertain to summary judgment. However, the 7 requirements of Rule 56(e) are inapplicable in the preliminary injunction context. See, e.g., Arthur J. 8 Gallagher & Co., Inc. v. Edgewood Partners Ins. Center, No. C 07-06418 JSW, 2008 WL 205274, *2 9 n.3 (N.D. Cal. Jan. 23, 2008) ("[O]n an application for TRO or preliminary injunction, affidavits need 10 not meet the standards set forth in Federal Rule of [Civil Procedure] 56(e) or the Federal Rules of 11 Evidence."). Thus, SenoRx's attempt to raise technicalities in Mr. Magnuson's declaration fails. His 12 statements are reliable and should properly be considered as evidence of the irreparable harm SenoRx 13 will cause to the market if its infringement is not enjoined. 14 15 A. The Authorities SenoRx Relies on Are Not Applicable to Preliminary Injunctions SenoRx's reliance on FRCP 56(e) and cases interpreting that standard is misplaced.

16 Declarations having the form and content of Mr. Magnuson's, are "both customary and appropriate" in 17 the context of preliminary injunction proceedings and "need not meet the standards of Fed. R. Civ. P. 18 56(e) or of the Federal Rules of Evidence." Bracco v. Lackner, 462 F. Supp. 436, 442 (N.D. Cal. 19 1978). This relaxation of the rules otherwise applicable to dispositive motions and trial is due to the 20 limited time period for gathering evidence and the urgency of the matter. See Flynt Distrib. Co., Inc. v. 21 Harvey, 734 F.2d 1389, 1394 (9th Cir. 1988) ("The urgency of obtaining a preliminary injunction 22 necessitates a prompt determination and makes it difficult to obtain affidavits from persons who would 23 be competent to testify at trial."). 24 Besides urgency, other reasons permit relaxation of evidentiary standards in the preliminary

25 injunction context. For example, a preliminary injunction is non-final and preserves the status quo to 26 prevent irreparable harm, whereas summary judgment is a substitute for trial and results in a final 27 judgment. 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, § 2949 (4th ed.). 28
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1 This is another reason that preliminary injunctions are "customarily granted on the basis of procedures 2 that are less formal and on evidence that is less complete than a trial on the merits." Univ. of Texas v. 3 Coenisch, 451 U.S. 390, 395 (1981). In sum, SenoRx's arguments for striking portions of Mr. 4 Magnuson's declaration should be rejected. 5 6 7 B. Mr. Magnuson's Statements Show the Irreparable Harm SenoRx Will Cause to the Market by Its Continuing Infringement and Should Be Considered SenoRx's arguments can be divided into two categories. The first category is that certain

8 statements in Mr. Magnuson's declaration are based on hearsay, rendering them inadmissible. The 9 second category is that other statements are beyond Mr. Magnuson's personal knowledge. Without 10 engaging SenoRx in a debate as to the admissibility of Mr. Magnuson's statements at trial--a standard 11 inapplicable here--Mr. Magnuson's declaration is as a whole reliable and should be considered by the 12 Court in its decision on Hologic's preliminary injunction motion. 2 13 14 1. The Statements Regarding SenoRx's Predatory Pricing Are Reliable

SenoRx contends that statements included at paragraphs 19 and 21 of Mr. Magnuson's

15 declaration are hearsay that must be stricken from the declaration. SenoRx is wrong. First, assuming 16 arguendo, that these two paragraphs include hearsay, hearsay may be considered in the preliminary 17 injunction context. Arthur J. Gallagher, 2008 WL 205274 at *2 n.3. Second, not only can his 18 statements be considered, they are reliable evidence of SenoRx's attempts to increase price 19 competition. 20 Mr. Magnuson is responsible for all marketing efforts with respect to Hologic's MammoSite®

21 Radiation Therapy System. Magnuson Decl. ¶ 3. His job requires extensive knowledge of the market 22 as it pertains to the MammoSite® product line. Id. As part of his job responsibilities, Mr. Magnuson 23 has spoken with physicians, and Hologic's sales representatives and managers about SenoRx's pricing 24 25 For example, it is questionable as to whether the statement in paragraph 19 of Mr. Magnuson's declaration is hearsay; REDACTED 26 Magnuson Decl. ¶ 19. Mr. Magnuson works for Hologic and accordingly may speak knowledgeably as to the company's belief in 27 this regard. 28
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1 of Contura. Ex. A3 at 141:19-142:18; 143:7-12. REDACTED 2 3 142:19-23. REDACTED Id. at Id. at 144:2-9,

4 145:3-11; cf. Magnuson Decl. ¶ 19. Mr. Magnuson's statements regarding SenoRx's pricing are 5 properly considered as part of Hologic's knowledge and understanding of SenoRx's attempts to 6 irreparably change the market. Therefore, SenoRx's motion to strike statements in paragraphs 19 and 7 21 of Magnuson's declaration should be denied. 8 9 10 2. Mr. Magnuson's Has Broad Knowledge About the Relevant Products and Markets

Continuing to apply law inapplicable in the preliminary injunction context, SenoRx argues that

11 Mr. Magnuson has made several statements that lie beyond his personal knowledge. First, SenoRx 12 contends that Mr. Magnuson is not competent to make statements about MammoSite® in relation to 13 the patents-in-suit. SenoRx's Obj. & Mot. To Strike at 3-4. Mr. Magnuson's broad knowledge of the 14 MammoSite® products was evident from his deposition. See, e.g., Ex. A at 34:13-35:1 (discussing use 15 of the MammoSite), 50:1-9; 50:21-51:12 (discussing radiation dosing considerations using 16 MammoSite). That Mr. Magnuson is not a radiologist, surgeon, or a patent attorney is not relevant. 17 What is relevant is that Mr. Magnuson has adequate knowledge about interstitial brachytherapy due to 18 his experience with the MammoSite® products to offer the statements contained in paragraphs 8 and 19 11. 20 21 22 SenoRx attacks three types of statements in Mr. Magnuson's declaration as being too 3. SenoRx's Arguments Regarding Mr. Magnuson's Alleged Speculation Are Also Misplaced in the Preliminary Injunction Context

23 speculative to consider. These statements pertain to: (1) the Accelerated Partial Breast Irradiation 24 ("APBI") market; (2) why doctors may not use MammoSite® when compared to other treatments; and 25 26 Unless otherwise noted, all cited Exhibits refer to Exhibits attached to the Declaration of Katharine L. Altemus In Support of Plaintiff Hologic's Opposition To Objections And Motion To Strike Certain 27 Portions Of The Declaration Of Glenn Magnuson ("Altemus Decl."). 28
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1 (3) SenoRx's reputation. However, in each instance, Mr. Magnuson is competent to provide the facts 2 set forth in his declaration and those facts are reliable. 3 First, with respect to Mr. Magnuson's statements regarding the APBI market included at

4 paragraphs 18 and 23 of his declaration, his inability to accurately forecast precisely what will happen 5 when SenoRx continues its infringement and further diminishes Hologic's ability to set prices 6 underscores the irreparable harm to Hologic. See Pharmacia & Upjohn Co. v. Ranbaxy Pharms., Inc., 7 274 F. Supp. 2d 597, 614 (D.N.J. 2003) ("This projected harm is expected to take the form of . . . 8 irretrievable price and market erosion for the patented product, loss of current research opportunities 9 resulting from loss of funding, and the speculative nature of damage assessments." (emphasis added)). 10 Mr. Magnuson's statements are not uninformed; he has had significant on-the-job experience with 11 MammoSite® and has educated himself about Hologic's competitors. This includes attending internal 12 training, trade shows, and meeting with physicians. Ex. A at 12:20-13:3. 13 Second, Mr. Magnuson is competent to provide facts regarding why he believes some

14 physicians have not used MammoSite®. As SenoRx learned during Mr. Magnuson's deposition, Mr. 15 Magnuson is familiar with the results of various surveys of surgeons and radiation oncologists 16 conducted by Hologic. Ex. A at 68:11-21. During that deposition, Mr. Magnuson REDACTED 17 18 Id. at 73:9-74:5.

19 Informed by these studies, Mr. Magnuson is competent to testify why he believes that certain 20 physicians have not used MammoSite®, and why he, in his role as the Senior Director of Product 21 Marketing, believes that the MammoSite® is becoming more widely prescribed. 22 Third, Mr. Magnuson is competent to state what he believes SenoRx's reputation is in the

23 market. As someone who is charged with the responsibility of overseeing the marketing of the 24 MammoSite® product--the same product market SenoRx has directed its marketing of the Contura 25 toward--Mr. Magnuson is fully competent to share his knowledge about SenoRx's reputation. 26 Magnuson Decl. ¶¶ 6, 16. 27 28
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With respect to all of the above statements, the underlying knowledge and information was

2 acquired by Mr. Magnuson in the regular course of business and through the performance of his job 3 duties as the Senior Director of Product Marketing for MammoSite®. This context imbues the 4 statements with a sufficient degree of trustworthiness and reliability for them to be considered by the 5 Court. 6 7 CONCLUSION SenoRx is mistaken in arguing that the rigorous requirements of Rule 56(e) are applicable to

8 Mr. Magnuson's declaration. In ruling on Hologic's motion for a preliminary injunction, the Court can 9 consider evidence that may not be admissible at trial or appropriate at the summary judgment stage. 10 Moreover, as Hologic has demonstrated, Mr. Magnuson's statements are factually reliable and can 11 properly be considered. Thus, SenoRx's motion should be denied. 12 Dated: April 7, 2007 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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HOWREY LLP

By:

/s/ Katharine L. Altemus

HOWREY LLP Attorneys for Plaintiffs Hologic, Inc., Cytyc Corporation, and Hologic LP