UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marine Polymer, Inc.

v. Civil No. 06-cv-100-JD

Opinion No. 2010 DNH 026

HemCon, Inc.

O R D E R

HemCon, Inc. filed an assented-to motion to file a reply to

Marine Polymer, Inc.’s objection to HemCon’s motion for discovery

at the same time that the court issued its order denying the

motion for discovery. HemCon filed its motion within the time

allowed to provide notice of an intent to file a motion for leave

to file a reply, which was extended by the holiday, on Monday,

February 15. See LR 7.1(e)(2). Because of the proximity of

pretrial deadlines, the court issued the order on the motion

without waiting the last few hours of the time allowed for

notice. Therefore, the motion for leave is granted, and the

court will reconsider the order in light of HemCon’s reply.1

1Because a motion for leave to file a surreply would only be

granted in extraordinary circumstances, the court will not wait

the additional time allocated for that procedure. See LR

7.1(e)(3).

Case 1:06-cv-00100-JD Document 185 Filed 02/17/10 Page 1 of 5
I. Vascular Solutions Case

In the order denying HemCon’s motion for discovery, the

court concluded that HemCon’s argument that it had been misled

about the subjects of litigation in Vascular Solutions, Inc. v.

Marine Polymer Techs., Inc., 590 F.3d 56 (1st Cir. 2009), was not

persuasive and did not provide a basis for reopening discovery. 

HemCon contends in its reply that the public filings in Vascular

Solutions did not provide notice of the parties’ exchange of

evidence pertaining to market share and suitable noninfringing

substitute products in that case. HemCon also argues that

although the Vascular Solutions case was mentioned in a

deposition in this case, that inquiry did not uncover evidence of

market share and substitute products.

HemCon reiterates in its reply that it had propounded

interrogatories to Marine Polymer asking for documents concerning

any evaluation of market share of chitin or chitosan products and

“documents concerning any civil action or proceeding based in

whole or in part on any chitin product or chitosan product

manufactured, advertised, or sold by [Marine Polymer].” HemCon

believes that Marine Polymer failed to produce documents from the

Vascular Solutions case that are within the documents requested

by HemCon’s interrogatories in this case. 

2

Case 1:06-cv-00100-JD Document 185 Filed 02/17/10 Page 2 of 5
As the court noted in the order denying HemCon’s discovery

motion, HemCon does not seek sanctions for discovery abuses under

Federal Rule of Civil Procedure 37(c). Instead, HemCon asked the

court to exercise its discretion to allow additional discovery

related to the Vascular Solutions case and a submission Marine

Polymer made to the FDA.

Federal Rule of Civil Procedure 26(e) remains in effect and

requires Marine Polymer to supplement its disclosures. If Marine

Polymer has materials from the Vascular Solutions case that are

responsive to HemCon’s interrogatories, those documents must be

disclosed immediately. HemCon has not shown, however, that

additional discovery is necessary, which would require another

delay in the trial schedule.

II. FDA Submission

In support of its motion for additional discovery, HemCon

asserted that Marine Polymer’s recent disclosure of its

submission to the FDA of a comparison of its SYVEK product to a

collagen product was untimely and had led to HemCon’s discovery

of a related European patent. HemCon argued that the information

about the European patent “would have inevitably led to further

depositions” regarding the scope and content of prior art, Marine

Polymer’s knowledge of prior art, and Marine Polymer’s intent in

3

Case 1:06-cv-00100-JD Document 185 Filed 02/17/10 Page 3 of 5
not disclosing material prior art. The court concluded that

HemCon’s vague references to inevitable further depositions was

insufficient to justify reopening discovery at this late stage of

the case.

In its reply, HemCon argues that Marine Polymer’s defense,

that the European patent claiming a bandage for the rapid cure of

wounds was irrelevant to the ‘245 patent claims, is

“disingenuous” because wound healing is mentioned in the

specification of the ‘245 patent. As was explained in the claim

construction order, the ‘245 patent shares a long and complex

specification section with a family of related patents that claim

a variety of other inventions. For that reason, the

specification, confusingly, includes descriptions and information

about inventions that are not claimed by the ‘245 patent. 

Therefore, despite references to wound healing in the ‘245

patent, HemCon has not persuaded the court that the newlydiscovered European patent is sufficiently pertinent to this case

to justify reopening discovery.

4

Case 1:06-cv-00100-JD Document 185 Filed 02/17/10 Page 4 of 5
Conclusion

For the foregoing reasons, the defendant’s motion for leave

to file a reply (document no. 183) is granted. The court has

considered the reply. The order denying the defendant’s motion

to reopen discovery stands.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

February 17, 2010

cc: Julie M. Baher, Esquire

Garet K. Galster, Esquire

Daniel R. Johnson, Esquire

Heather E. Krans, Esquire

Joseph A. Kromholz, Esquire

Lynda Q. Nguyen, Esquire

Brian M. Poissant, Esquire

Daniel D. Ryan, Esquire

Ognian V. Shentov, Esquire

Jonathan M. Shirley, Esquire

Daniel E. Will, Esquire

Leigh S. Willey, Esquire

5

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