Urology Expert Witness Partially Allowed

Plaintiff argues that the defendant infringed on their patent for treatment of BPH by marketing their drug Cialis.  The plaintiff hired a urology expert witness to assist with their case.  The defendant filed a motion to exclude.  The court granted a portion of the motion and denied a portion of the motion.

Facts:  This case (ERFINDERGEMEINSCHAFT UROPEP GbR v. Eli Lilly and Company – United States District Court – Eastern District of Texas – March 17th, 2017) is one of patent infringement.  The plaintiff (UroPep) filed a complaint against the defendant (Lilly) arguing that they infringed UroPep’s patent (“the 124 patent) by marketing the drug Cialis for treatment of the signs and symptoms of benign prostatic hyperplasia (“BPH”).  UroPep has hired three experts to assist in proving their case, including Anthony M. Sliwinski (Urology Expert Witness).  Lilly has filed a motion to exclude the expert witness testimony of Dr. Sliwinski.

Discussion:  Lilly argues that Dr. Sliwinski’s opinions should be excluded in their entirety.  These opinions include: 1) that by prescribing Cialis for BPH, he and his partners have infringed on the patent at issue; 2) the nature and influence of Lilly’s advertising for Cialis; and 3) his approximation for the number of prescriptions he has written for Cialis for treating BPH.  Last Lilly also would like to exclude the portion of Dr. Sliwinski’s testimony on the uselessness of herbal and natural remedies for treating BPH.

Dr. Slimwinki stated that he prescribes Cialis for treating BPH to many of his patients and has found that Cialis is an effective treatment for BPH for his patients.  He also stated that he and his partners infringe on claims 1 and 3 of the patent because 1) they are the ones that administer the drug; 2) Cialis is a PDE5 inhibitor that is 20 times more selective in inhibiting PDE5 than PDE1 through PDE4; and 3) the 5mg dose of the drug is an effective amount  for the treatment of BPH.

Lilly contends that Dr. Sliwinski’s opinion that he and his partners infringe the ‘124 patent is not helpful to the jury.  The court did not agree, opining that his opinion is not conclusory and will be helpful to the jury as his opinion based on clinical experience and describes the effectiveness of Cialis for the treatment of BPH.

Regarding marketing and promotion of Cialis, Dr. Sliwinski testified that Lilly sends pharmaceutical representatives to his practice many times per month and sends promotional material to his office at least once per week.  He states that the way Lilly advertises and promotes Cialis is a reason why he prescribes it in the infringing manner.  Lilly argues that Dr. Sliwinski’s opinion of the marketing of Cialis is not relevant and should have hired a marketing expert on this issue.  The court agreed with the latter portion of this argument, by stating that Dr. Swilinksi did not use any expert knowledge to “interpret” the advertising and promotional materials.

Last, regarding Dr. Swilinksi’s opinion on the uselessness of natural remedies in treating BPH, the court decided that this opinion is not based on sufficient facts nor citations to peer review studies or other types of medical references.

Conclusion:  The expert witness testimony of Dr. Swilinski is denied in part and granted in part.