Gore must cough up fees to cover pursuit of sanctions in stent graft spat with Bard

A federal judge in Delaware yesterday ordered W.L. Gore & Assoc. to cough up some of the legal fees C.R. Bard (NYSE:BCR) incurred in defending itself against Gore’s bid for sanctions against Bard’s lawyers in their long-running war over stent graft patents.

Gore alleged that the Bard legal time conspired to sit on an expert witness report from 2009 that was used in another battle in the stent graft fight, “only to spring it on this court at the last minute in order to ‘blow up’ the trial,” wrote Judge Leonard Stark of the U.S. District Court for Delaware. Gore also claimed that counsel for Bard allegedly lied to Stark about when the report was received and gained improper access to sealed documents at the courthouse in Maryland.

But, Stark wrote, he was persuaded by Bard’s “corroborated” and “entirely plausible” explanations and found Gore’s conspiracy accusations “entirely implausible.” Bard’s request for attorneys’ fees “may well be a request that should be granted” because Gore’s sanctions motion “leveled serious (but unsupported) accusations of misconduct against highly-experienced attorneys,” the judge wrote.

“Bard’s fees motion presents a very difficult decision. On the 1 hand, the court credits Gore’s counsel’s repeated representations that it brought the sanctions motion ‘in complete good faith’ and with the belief that the underlying facts should be presented to the court for its ‘independent assessment,'” Stark wrote. “The court can understand how Gore’s discovery of Bard’s counsel’s reliance on [the 2009 report], and Bard’s subsequent use of the same report 6 years later on the eve of trial in this case, might initially give Gore’s counsel pause. On the other hand, however, the advancement of serious charges of misconduct involving an alleged conspiracy by multiple attorneys must be supported by evidence and not mere suspicion or coincidence – especially when a party decides to file such an attack in court, leveling potentially career-ending allegations in a public forum.

“Therefore, while the court credits Gore’s representations that it filed its sanctions motion in good faith, it finds Gore’s continued aggressive pursuit thereafter of its serious accusations – despite completely unrebutted evidence to the contrary – warrants requiring Gore to reimburse Bard for its reasonable attorneys’ fees incurred in connection with opposing the sanctions motion from after the date Bard filed its brief in opposition to the Sanctions Motion,” he wrote [emphases his]. “From that point forward (i.e., after Jan. 22, 2016), Gore multiplied the proceedings, in an unreasonable manner, increasing costs, by intentional misconduct.”

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