Ortho Surgeon Asks Court to Triple Damages vs DePuy Synthes

Earlier this year, Rasmussen Instruments, LLC, a Salt Lake City, Utah-based medical device company owned by Gary Lynn Rasmussen, M.D., a Murray, Utah based orthopedic surgeon, won a patent infringement lawsuit against DePuy Synthes, the orthopedic company of Johnson & Johnson based in Raynham, Massachusetts. Now Rasmussen Instruments is asking the court to triple the jury’s $20 million verdict.

In a motion filed earlier this month, in addition to asking the court to treble the damages to $60 million, Rasmussen Instruments also asked that the court do the following: “award Rasmussen its reasonable attorneys’ fees in the amount of $8,026,998,” “award prejudgment interest in the amount of $392,959,” and “grant a permanent injunction with respect to the Balanced Sizer.”

Dr. Rasmussen reportedly assigned both patents in the original lawsuit to his company, Rasmussen Instruments. The patents were both titled “Arthroplasty Systems and Methods for Optimally Aligning and Tensioning a Knee Prosthesis,” and are U.S. patent number 9,492,180 (the ‘180 patent) and U.S. patent number 10,517,583 (the ‘583 patent).

In its verdict, the jury found that DePuy’s Balanced Sizer directly infringed on the ‘180 patent and DePuy’s infringement was willful. The Balanced Sizer was removed from market earlier this year. For OTW’s original coverage of the verdict, see “$20M Verdict Against Depuy Synthes for Patent Infringement.”

The law allows the court to increase damages up to three times the amount awarded. This enhanced damages amount, according to the motion, is meant to be a “‘punitive’ or ‘vindictive’ sanction for egregious infringement behavior.” This can be appropriate in an egregious case of willful misconduct.

In support of its motion, Rasmussen Instruments points to the jury’s finding that DePuy’s infringement was willful. Rasmussen Instruments also claims that DePuy’s deliberate copying of Dr. Rasmussen’s patented technology also supports enhancement. Additionally, Rasmussen Instruments asserts that DePuy did nothing to avoid infringement when it developed its Balanced Sizer and DePuy benefited from their infringement for five years.

Following the motion, DePuy filed its own motion for a new trial. In support of its motion, DePuy is claiming that the court failed to include a question on the verdict form regarding ownership of the patent. DePuy is also arguing that “the jury was instructed to apply legally incorrect claim constructions for ‘femoral component,’ ‘tensioning apparatus,’ and ‘threaded member’, unfairly prejudicing DePuy.” Furthermore, DePuy asserts that the $20 million damages award was based on “unreliable opinion testimony” and “at a minimum” requires a new trial on damages.