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Law360 (October 20, 2020, 5:23 PM EDT ) Foundation Medicine Inc. has objected to Delaware Chief U.S. District Judge Leonard Stark's scheduling of an in-person jury trial for Nov. 30 in Guardant Health's infringement suit against Foundation over cancer testing patents, pointing to a recent spike in coronavirus cases.
Foundation said in a filing Monday it would be unsafe to hold a trial in the case alleging its Foundation ACT liquid biopsy tests infringe Guardant patents covering the Guardant 360, which uses advanced DNA sequencing for individualized cancer therapy treatments.
"FMI is principally a healthcare company and it believes that the health risks associated with proceeding with a jury trial in the courtroom on November 30, 2020 far outweigh any benefits of efficiency or expediency," it said.
Judge Stark said in an Oct. 16 order that he set the trial for next month because the case has been pending for three years and has already been delayed twice. It was originally scheduled to begin May 18, but it was pushed back, in part because of the pandemic, the judge said.
"The court believes it can conduct a jury trial safely — by making certain modifications to its ordinary procedures — while also providing the parties a fair trial. If trial were delayed once again, it is entirely unclear when it would occur," the order said.
According to the court calendar, a jury trial in a separate matter is scheduled to begin on Oct. 26.
Judge Stark noted that the court is only holding one trial at a time because of pandemic-related restrictions, and that 200 civil jury trials are scheduled for 2021 in Delaware, a tally he said does not include criminal trials or civil trials that have been postponed and are waiting to be rescheduled.
Among the modifications, Judge Stark said all witnesses will testify remotely, each side will only be allowed to have five representatives in the courtroom, and trial participants — including attorneys — will have the option of remote participation for things like opening and closing statements and cross-examinations.
In objecting to a trial proceeding in November even with these modifications, Foundation said that cases are spiking in Massachusetts — where the majority of the trial team is located — and that more than half of the team can't go to Delaware because of the health risks.
Foundation acknowledged the possibility of its attorneys participating remotely but said some of the team, including the lead attorney, will have to travel "and will have no choice but to operate in groups indoors in close quarters for long hours."
But Foundation also argued that proceeding with the November trial would be inadequate, unfair and prejudicial. It objected to remote attorney participation because it said some members of the jury pool might be resentful that attorneys could appear remotely while they have to be there in-person.
Its due process rights are also at stake, Foundation argued, saying it would be difficult to empanel a representative jury when it's likely that older jurors and those in high-risk categories will be excluded for health reasons.
"Consequently, jury selection necessarily will be biased in favor of individuals or groups who are less risk-averse to, or less at risk from, COVID-19, either due to age, race, sex, access to healthcare, or pre-existing health conditions," Foundation said.
It also suggested that its due process rights could be compromised by the inability to question witnesses in person because of "substantial credibility issues."
The health care company was referencing alleged spoliation of evidence, for which Foundation is seeking sanctions. The documents outlining those allegations are under seal, but Foundation said in its filing Monday that "the conduct and conflicting testimony and documents of Guardant's founders, including the alleged spoliation of evidence," is at issue.
It argued those factors make this case "a particularly poor test case" for fully remote testimony.
Guardant filed the instant suit in November 2017, but the parties have been involved in additional litigation involving a related patent. They settled that dispute, however, in 2018.
Meanwhile, the Patent Trial and Appeal Board agreed to review two of the patents at issue in this case back in August 2019. The board issued a pair of decisions in August that upheld one of 16 challenged claims in one patent and 11 of 26 claims in the other.
Counsel for the parties did not return requests for comment.
The patents-in-suit are U.S. Patent Nos. 9,598,731; 9,834,822; 9,840,743; and 9,902,992.
Guardant Health is represented by Joseph J. Farnan Jr., Brian E. Farnan and Michael J. Farnan of Farnan LLP.
Foundation Medicine is represented by Jeremy A. Tigan of Morris Nichols Arsht & Tunnell LLP.
The case is Guardant Health Inc. v. Foundation Medicine Inc., case number 1:17-cv-01616, in the U.S. District Court for the District of Delaware.
--Additional reporting by Dani Kass. Editing by Jack Karp.
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