NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HOWMEDICA OSTEONICS CORP., a Hon. Dennis M. Cavanaugh

subsidiary of STRYKER

CORPORATION, a New Jersey OPINION

corporation

Civil Action No. 2:1 l-cv-1857 (DMC)(JAD)

Plaintiff.

v.

ZIMMER, INC., et a!.,

Defendants.

DENNIS M. CAVANAUGH. U.S.D.J.:

This matter comes before the Court upon various Motions in Lirnine by Defendants

Zimmer, Inc.. et a!., (“Defendants”) and Plaintiff Howmedica Osteonics Corp.. a subsidiary of

Strkyer Corporation (‘Plaintiff’). The Court will address these Motions in turn. Pursuant to FED.

R. Civ. P 78, no oral argument was heard. After considering the submissions of the parties. the

decision of this Court upon each of these Motions is set forth for the reasons herein expressed

separately, below.

L DEFENDANTS’ MOTIONS

1) Motion to Preclude Report and Testimony of Rodney L Crawford or, in the

Alternative, Limit Report and Testimony to Conform to One-Year Terni of

Non-Competition and Non-Solicitation Agreements

Defendants seek to preclude or limit the testimony of Rodney L. Crawford, a damages

expert retained by Plaintiff. Plaintiff intends to use Crawford to testify to profits lost due to
Defendants’ alleged misconduct. Defendants claim that this testimony should he excluded

because i) the damages theory- disregards critical facts that bear directly on whether and to what

extent Plaintiff is entitled to recover, ii) Crawford’s methods are unreliable and do not satisfy the

Daubert test, and iii) Crawford inappropriately assumes that Plaintiffs lost profits are entirely

attributable to Defendant.

Guided by the framework set out in Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993), the Third Circuit looks at a number of factors when determining expert

admissibility. See Elcock v. Kmart Corp., 233 F.3d 734, 745-46 (3d Cir. 2000) (listing

factors). However, this test is not meant to replace the jury’s job to weigh the evidence, and

“[viigorous cross-examination, presentation of contrary evidence, and careful instruction on

the burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.” ID Sec. Sys. Canada. Inc. v. Checkpoint Sys.. Inc.. 249 F. Supp. 2d

622, 69 1-92 (E.D. Pa. 2003) (quoting Daubert, 509 U.S. at 595).

Here, Defendants’ arguments are better suited for the weight of the evidence rather than

its admissibility under Daubert. Accordingly, Defendants’ Motion is denied.

2) Motion to Preclude Evidence of and Reference to Order to Show Cause with

Temporary Restraints and Order on Plaintiff’s Application for Preliminary

injunction

Defendants seek to bar evidence and reference to a temporary restraining order and a

subsequent preliminary injunction barring Defendants from. among other things. using or

disclosing Stryker’ s confidential information, encouraging Stryker employees from breaching

their contractual obligations owed to Stryker, and moving business of any Stryker Spine

customer of the Las Vegas, Arizona, or Chicago branches to Zimmer for a period of twelve

months, effective April 1, 2011. The result was that Defendants were barred from competing
with Stryker in these territories between April 1,2011 and March 31, 2012. Defendants argue

that this evidence is irrelevant.

This Court agrees with Defendants’ assertion that the temporary restraining order and

preliminary injunction are irrelevant. Further, even if the evidence were relevant, it nonetheless

must be excluded under Federal Rule of Evidence 403 because it would be unfairly prejudicial,

confuse the issues, and mislead the jury. S.çc çg, Novartis Pharmaceuticals Corp. v. Teva

Pharmaceuticals USA, Inc., No. 05-CV-1887. 2009 WL 3754170, at 5 (D.N.J. Nov. 5. 2009)

(“Given the leniency afforded by courts at the preliminary injunction stage, the introduction of

the denial of [a] preliminary injunction . . . creates an unduly prejudicial effect outweighing any

potential probative value alleged for purposes of introduction.”). Accordingly, Defendants’

Motion is granted.

3) Motions to Preclude Reference to Conspiracy or Solicitation Prior to Laying a

Proper Foundation at Trial and to Preclude Plaintiff from Referring to or

Otherwise Characterizing Defendants’ Conduct as “Raiding,” “Corporate

Raiding,” or Any Other Similar Term

I)efendants seek to preclude Plaintiff from referring to a conspiracy between any

Defendants and from referencing improper solicitation of Stryker clients by any Defendant

without first laying a proper foundation. In particular, Defendants seek to preclude Plaintiff from

referring to these matters in Plaintiffs opening statement. Additionally, Defendants seek to

preclude Plaintiff from using the terms “raiding” or “corporate raiding” when referring to the

alleged conduct of Defendants.

Objections to these potential references should be made by Defendants if and when they

arise at trial, not in motions in limine. See Kraemer v. Franklin and Marshall College, No. 95-

0020, 1995 WL 689361, at * (E.D. Pa. Nov. 13, 1995) (declining to rule whether to exclude

testimony “before it [is] placed into a specific context at trial”). Accordingly. Defendants’

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Motions are denied.

4) Defendants’ Motion to Preclude Plaintifffrom Imputing Conduct of Any

Individual Defendant to Any Other Defendant and from Referring to the

Defendants Collectively

Defendants seek to preclude Plaintifffrom imputing the alleged conduct of certain

individual Defendants to any other Defendant and from referring to, and making allegations

against, the Defendants as a single group. Defendants concede that these references would be

permissible ifPlaintiffpresents evidence that is admissible against all Defendants in an identified

group.

It is clear from the law that, absent evidence of a conspiracy, Plaintiffis prohibited from

imputing conduct of one Defendant to another and from referring to Defendants collectively.

Therefore, except to the extent that evidence at trial supports the contention that Defendants were

acting collectively or that conduct of one Defendant should be imputed to another, Defendants’

Motion is granted.

5) Defendants’ Mdtion to Bifurcate Proceedings on Punitive Damages

Defendants move to bifurcate the trial ofthis matter to separate, if necessary, the

proceedings on punitive damages in a second stage oftrial before the same jury. Additionally,

Defendants seek to exclude reference to or evidence ofthe Zimmer Defendants’ size. financials,

and corporate status, and any other evidence related to the financial condition ofthe Zimmer

Defendants, until the punitive damages stage oftrial.

Under the Punitive Damages Act, “[a]ny actions involving punitive damages shall, if

requested by any defendant, be conducted in a bifurcated trial.” N.J.S.A § 2A:15-5.13(a).

Further, “[e]vidence relevant only to the issues of punitive damages shall not be admissible”

during the first stage ofthe bifurcated trial. N.J.S.A. § 2A:15-5.13(b). Accordingly, Defendants’

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Motion is granted.

6) Motion to Exclude William J. Heller, Esq. and William J. O’Shaughnessy, Esq. as

Trial Witnesses

Defendants seek to preclude Plaintiff from calling Defendants’ prior counsel. William J.

Heller, Esq. and William J. O’Shaughnessy, Esq., as trial witnesses. Defendants anticipate that

Plaintili will call these witnesses in order to question them about privileged communications. As

the attorney-client privilege is clearly applicable. Defendants’ Mion is granted.

7) Motion to Exclude Testimony, Reports and/or Opinions of Greg KeIIev, Plaintiff’s

Proffered Computer Forensics Expert

Defendants seek to preclude Plaintiff from introducing the reports, testimony, or opinions

of its proffered computer forensics expert, Greg Kelley. Defendants claim that Kelley’s opinions

regarding alleged destruction of data should be excluded because these issues were raised and

resolved during discovery. Defendants claim that the remainder of Kelley’ s opinions, reports and

testimony should be excluded because they are not relevant and will not assist the trier of fact.

The Court agrees with Defendants regarding Kelley’s testimony that would address

alleged data destruction. However, the Court finds that the remainder of Kellev’ s testimony is

relevant and will assist the trier of fact. Accordingly, Defendants’ Motion is granted in part and

denied in part.

IL PLAINTIFF’S MOTIONS

1) Motion to Bar Reference to Stryker’s Recruiting and Hiring Practices Unrelated

to This Matter

Plaintiff seeks to preclude Defendants from introducing or referring to any evidence

relating to Stryker’ s recruiting and hiring practices for employees other than those involved in

the instant lawsuit. Plaintiff believes that Defendants will reference these practices in attempt to

defend their own alleged misconduct, and argues that any evidence or reference to these
practices are irrelevant.

This Court agrees with Plaintiff’s assertion that references to Stryker’s recruiting and

hiring practices regarding employees not involved in the instant suit are irrelevant. Such

evidence has no probative value in this case and must be excluded under Federal Rule of

Evidence 401. Accordingly. Plaintiffs Motion is granted.

2) Motion to Bar Reference to the Specifics of Greg Kelley’s or Vestige, Ltd.?s

Work on Other Matter For Which They Have Not Been Designated as Testifying

Experts

Greg Kelley. Plaintiffs proffered computers expert in this case, is the co-founder and

Chief Technology Officer of Vestige, Ltd. (Vestige”), a computer forensics firm. PlainiilT seeks

to preclude Defendants from referencing work that Kelley and Vestige have performed for other

parties in both civil and criminal litigation as consultants, rather than as experts. Plaintiff argues

that this evidence is irrelevant, and that even if it were relevant, it should be excluded under

Federal Rule of Evidence 403. Plaintiff also claims that these matters are covered by the work

product privilege.

Kelley and Vestige’s work on other cases is relevant to whether Kelley’s testimony is

reliable and persuasive, and thus it is proper material for cross—examination. To the extent that

this testimony might implicate privileged material, the privilege can be asserted at trial if

necessary. Plaintiffs Motion is denied.

3) Motion to Bar Reference to Other Litigation Involving Stryker and/or to Which

Stryker is a Party

Plaintiff seeks to preclude Defendants from referencing other litigation in which Stryker

was involved in or was named as a party involving the enforcement of covenants not to compete.

Plaintiff argues that not only does this evidence have no probative value in the present case, but

it would confuse and mislead the jury and unduly prejudice Plaintiff

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This Court agrees with Plaintiffs assertion that evidence of other litigation involving

Strvker has no probative value in the present case. Therefore, this evidence must he excluded

under Federal Rule of Evidence 401, and Plaintiffs Motion is granted.

4) Motion to Bar Reference to Chris Duffy’s Arrest and Conviction for Driving

Under the Influence

Plaintiff seeks to preclude Defendants from referring to a DUI arrest and conviction of

one of Plaintiffs witnesses, Chris Duffy, who is a former sales representative of Strkyer.

Plaintiff claims that evidence of Duffv’ s arrest and conviction is irrelevant and would he highly

prejudicial to Plaintiff. Defendants argue that this information is relevant because Plaintiff claims

that Duffy revoked an acceptance of employment at Zimmer because he was troubled by

Defendants’ alleged misconduct. Defendants assert that the true reason Duffy revoked his

acceptance to work at Zimmer was because he was worried that if he left Stryker, and his arrest

and conviction subsequently surfaced in Zimmer’s background check, his offer from Zimmer

would be revoked and he would be left unemployed.

Any prejudice resulting from Defendants’ questioning of Duffy about his arrest and

conviction can be cured by providing the jury with a limiting instruction as to what purposes the

evidence can be considered for. Accordingly. Plaintiffs Motion is denied.

5) Motion to Bar Reference to Dismissed Claims

Plaintiff seeks to preclude Defendants from referencing previous claims made b Plaintiff

against Defendants that were resolved in favor of Defendants on summary judgment. Plaintiff

argues that these claims are irrelevant, they would confuse the jury. and they would unfairly

prejudice Plaintiff. This Court agrees that this evidence is irrelevant and must be excluded under

Federal Rule of Evidence 401. Accordingly, Plaintiffs Motion is granted.

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6) Motion to Compel Discovery Regarding Brothen’s Termination from Zimnier

and For a Finding That Stryker May Contact Brothen Regarding NonPrivileged Matters, or, in the Alternative, to Bar Zimmer from Introducing

Evidence Regarding Brothe&s Termination

Kevin Brothen is a former Stryker employee, who subsequently worked at Zimmer until

he was terminated on August 6,2012. Plaintiff seeks to compel discovery regarding the

circumstances surrounding Brothen’ s termination and asks for a finding that Plaintiff can contact

Brothen regarding non-privileged matters. Plaintiff also asks that, if this Court denies the

discovery request, Defendants be barred from introducing evidence or arguments regarding

Brothen’s termination in a way that benefits Defendants. Defendants claim that this information

is irrelevant.

Plaintiffs discovery request is denied. as it is too late in the litigation process for such a

request. However, this Court will direct Defendants to submit a certification to the Court

regarding the circumstances of Brothen’s termination for in camera review. Accordingly,

Plainti if’ s Motion is denied.

7) Motion to Bar Reference to Stryker’s Unrelated Decisions Regarding

Enforcement of Restrictive Covenants

Plaintiff seeks to preclude Defendants from presenting any evidence relating to Stryker’ s

enforcement or non-enforcement of restrictive covenant agreements other than those that are at

issue in the present case, arguing that such evidence is irrelevant and would be unfairly

prejudicial. This Court agrees that the evidence is irrelevant and must be excluded under Federal

Rule of Evidence 401. Accordingly, Plaintiffs Motion is granted.

8) Motion to Exclude Portions of Expert Opinions of Peter R. Coon and John II.

Evans

Plaintiff seeks to preclude portions of opinions by Defendants’ experts Peter R. Coon and

John H. Evans, claiming that these portions violate Federal Rule of Evidence 702 and the

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Daubert standard. Plaintiffs arguments are better suited for the weight of the experts testimony

rather than the admissibility. See supra Part 1.1). Accordingly. Plaintiffs Motion is denied.

Ill. CONCLUSION

In accordance with the foregoing, Defendants’ Motions addressed in section 1, parts 2, 4,

5. and 6 are granted, the Motions addressed in parts 1 and 3 are denied, and the Motion

addressed in section 7 is granted in part and denied in part. Plaintiffs Motions addressed in

section II, parts 1, 3, 5, and 7 are granted, and the Motions addressed in parts 2. 4, 6. and $ are

denied.

Date: Septembe 4,2013

Original: Clerks Office

cc: Hon. Joseph A. Dickson, U.S.M.J.

All Counsel of Record

File

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