CareFirst of Maryland, Inc., et al. v. Johnson & Johnson and Janssen Biotech, Inc.

Summary

The United States District Court for the Eastern District of Virginia addresses CareFirst’s motion to exclude portions of proposed antitrust expert Debbie Feinstein’s testimony. The court holds that testimony concerning agency inaction is admissible to explain why a reasonable company might not perceive antitrust concerns, but inadmissible insofar as it treats agency inaction as evidence that J&J’s conduct was reasonable or lawful. The court otherwise permits testimony concerning J&J’s intent and the lack of competition between J&J and Momenta as relevant to willfulness and antitrust risk assessment.

Holdings

1. Expert testimony that the FTC's or DOJ's failure to challenge the Momenta acquisition, standing alone, established that J&J's decision to acquire or retain the patents was reasonable or that the transaction was lawful was inadmissible.
2. Feinstein could testify that agency inaction would have given a reasonable company in J&J's position no reason to believe that retaining the Momenta patents was anticompetitive or that divestiture was necessary, provided the testimony was not presented as proof that the transaction was lawful or affirmatively approved.
3. Feinstein's testimony concerning J&J's intent in acquiring Momenta, the extent of competition between J&J and Momenta at the time of acquisition, and how those facts informed a reasonable company's antitrust-risk assessment was admissible under Rule 702 and was not unfairly prejudicial under Rule 403.

Questions Presented

1. Whether Feinstein could testify that the FTC's and DOJ's failure to challenge the Momenta acquisition supported the reasonableness of J&J's decision to acquire and retain the Momenta patents.
2. Whether Feinstein could testify that agency inaction would have given a reasonable company in J&J's position no reason to believe the acquisition was anticompetitive.
3. Whether Feinstein's opinions concerning J&J's intent, the absence of competition between J&J and Momenta, and the reasonableness of retaining the patents were relevant and reliable under Rule 702 and not unfairly prejudicial under Rule 403.

Disposition

other