Asked and Answered . . .

Rodger Young on high stakes patent case

By Tom Kirvan
Legal News

In December, Young & Associates, a Michigan based boutique law firm specializing in complex business litigation, scored a major legal triumph in a one-week jury trial, securing a $17.1 million verdict against an overseas company and its American subsidiary.

The case involved Arthrex, a Florida based company that bills itself as a “global leader in arthroscopic surgery technology,” in a patent infringement action against United Kingdom based Smith & Nephew, Inc. and its U.S. subsidiary, ArthroCare. The plaintiff, represented by noted Detroit area trial attorney Rodger Young and his Farmington Hills based firm, charged that the defendants infringed upon two “groundbreaking medical device patents” owned by Arthrex. In particular, the action brought by Arthrex sought to protect patents it had developed in “knotless and cross-support technology,” a design used globally by surgeons to “affix soft tissue to bone” in procedures such as rotator cuff surgery.

Young, a Montana native who founded his firm in 1990 after spending 18 years as a partner with a Detroit law firm, has won scores of jury trials in federal and state courts over the course of his career. He has prevailed in complex cases involving such clients as Barclays, Siemens, Pullman Industries, Teleflex, Wachovia, and Motor City Casinos among many others. He has taken on the likes of General Motors, Ford Motor Co., Navistar, Chase Bank, and Northern Telecom, a collection of business heavyweights that tend to make legal opponents quake.

A veteran of the U.S. Air Force, Young has served as a U.S. delegate to the United Nations General Assembly, helping redesign the internal justice system for the U.N. In addition, Young has served on the Michigan Environmental Review Board, the Michigan Transportation Commission, and the board of directors for the Detroit Symphony Orchestra.

Kirvan:?Tell us about the origin of the case and how your firm became involved.

Our firm has represented Arthrex, which is a global leader in arthroscopic surgery technology, for 15 years in various litigation matters. Our involvement in this case was based on our track record of success on behalf of Arthrex.

Kirvan:?Why was the case litigated in Marshall, Texas, a city of some 24,000 people near the Louisiana border that is the self-proclaimed “Pottery Capital of the World” and the so-called “Cultural Capital of East Texas” among other labels?

Interestingly enough, over the years Marshall has become a hotbed for patent litigation in the United States. The federal court for the Eastern District of Texas has a well-deserved reputation for its competent and efficient handling of patent cases, which are among the principal reasons why litigants gravitate to that venue.

Kirvan: Aside from yourself, who was part of your trial team and what role did each member play during the case?

Jaye Quadrozzi, a University of Michigan Law Schoolgrad and a key member of our firm, played an important role in developing our trial strategy and in handing various direct and cross examinations of expert witnesses. Assisting our trial team was Eric Albritton, a highly regarded trial attorney who heads his own firm in Longview, Texas. He offered counsel to us on local practices, while also participating in direct and cross examinations.

Kirvan:?As a pioneer in the field of arthroscopic surgery technology, your client – Anthrex – reportedly has developed more than 10,000 products and surgical procedures designed to “advance minimally invasive orthopedic surgery.” Which doctors, in particular, were in the legal crosshairs of this case and what kind of expert testimony did they provide to bolster your trial strategy?

Dr. Stephen Burkhart of San Antonio, who is a pioneer in the field of shoulder arthroscopy, and Dr. Neal ElAttrache, the team orthopedic doctor for the Los Angeles Rams and the L.A. Dodgers, testified on behalf of our client. They are two nationally recognized orthopedic sports medicine specialists and inventors of the two Arthrex patents at the center of this patent infringement case. Each doctor spent more than two hours on the witness stand, describing in detail the surgical procedures they had developed in their fields of specialty and how those patented ideas and surgical techniques had been infringed by the defendant.

Kirvan:?From court reports, we understand that Dr. ElAttrache is particularly well known in the field of sports medicine. Care to namedrop one of his more notable patients?

Tom Brady, who plays a little quarterback for New England. When Brady blew out his knee (in the 2008 season opener), tearing three ligaments, Dr. ElAttrache successfully performed the reconstructive surgery. Based on what Brady did in the Super Bowl earlier this month, I would hazard to say that Dr. ElAttrache must have been smiling at how things have turned out for the future Hall of Famer.

Kirvan:?How did the defense try to blunt the expert testimony that Drs. Burkhart and ElAttrache provided?

They tried to show that their testimony was solely motivated by their economic interests in the case as co-inventors of the patented technology. Obviously, the strategy didn’t carry much weight with the jury, which was well aware of the financial stakes involved.

Kirvan:?Was there any point in the case when you feared that the defense was swaying the jury in its favor?

?One of their expert witnesses, a Dr. Alexander Slocum from M.I.T., had a colorful way of testifying that seemed to resonate with the jury. An expert in mechanical engineering, he had a penchant for making noises, mimicking how certain machines would sound. He billed himself as a ‘Machine Guy’ – who ‘thinks, breathes, and feels’ machines. For whatever reason, his testimony seemed to be scoring points with the jury, so it was our job on cross examination to limit his ability to expound, keeping him to short and tight answers.

Kirvan:?Outline your closing argument and discuss how you tailored it to the jury of five women and three men?

:?As is customary in most trials, the case writes the closing argument for you. The job is to effectively summarize the key points of testimony and to remind jurors of the most important elements of the case. In this instance, we hammered home the fact that the defendants had been getting a free ride at the expense of our client. Everyone can relate to an argument like that.

Kirvan:?How long did the jury deliberate and do you typically experience a case of the butterflies while awaiting such a verdict?

They came back with a verdict in two hours, which was an indication that we had made our case very convincingly. As a trial attorney, you’re never fully certain how the jury will find, so there definitely are butterflies swirling around in your stomach until you hear the verdict. My daughter, Lauren, who was in court for the entire trial, was much more confident of the outcome, telling me, ‘The jury loves you, Dad.’ I was hoping she was right.

Kirvan:?Give us a sense of your and your team’s feelings upon hearing the verdict?

?It was complete elation, especially when the jury found that the defendants ‘willfully infringed’ upon Arthrex patents involving knotless and cross-support technology. Because the jury found that Smith & Nephew and ArthroCare knowingly violated the patents, the $17.1 million judgment could be more than tripled as we seek enhanced damages. Of course, the defendants are appealing the judgment and are arguing against any sort of enhanced damages, but we remain confident that we will prevail on appeal.

The ability to protect new ideas is a cornerstone of the American judicial system and one that we are gratified to uphold. The efforts of our trial team will have a far-reaching effect not only on Arthrex’s leading team of inventors, whose work has changed the face of arthroscopic surgery around the world, but beyond into the orthopedic product development and medical device technology industries. Smith & Nephew is a 150-year-old, multi-national firm with the experience to know better. This verdict speaks volumes for protecting innovation in our country.

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