Quinn Emanuel concedes expert's errors, says punishment unwarranted

Gearing up for a showdown over discovery sanctions sought by a Palo Alto biotechnology company in a false advertising lawsuit against a cancer testing rival, Natera Inc. conceded errors by its expert witness in failing to locate emails about a key study promptly but said they do not warrant punishment.

"Counsel sincerely apologizes to the Court for relying on Dr. [Howard] Hochster's own explanation as to his search rather than getting to the bottom of the issue sooner," wrote Quinn Emanuel Urquhart & Sullivan LLP partner Daniel J. Bramhall, an attorney for Natera.

"But neither Dr. Hochster nor Natera ever sought to deceive anyone or hide the truth about these emails that are of, at best, marginal relevance," he added, also accusing Guardant Health Inc.'s lawyers of making "reckless and baseless accusations in open court" against Hochster.

In a reply brief filed Tuesday, Keller/Anderle LLP partner Chase A. Scolnick, who represents Guardant, said Hochster and Natera knowingly made false statements about whether the doctor had early access to the study and demanded that both the study and Hochster be excluded from next month's trial.

In addition, he asked that Natera's counterclaims against Guardant be dismissed. Scolnick wrote that Natera's opposition brief was "filled with obfuscation, misdirection, and new lies."

"Natera has shown no remorse," he wrote. "And Natera's conduct shows it will continue its dishonesty whenever it might serve its purposes." Guardant Health Inc. v. Natera Inc., 21-CV-04062 (N.D. Cal., filed May 27, 2021).

The rival companies both make oncology tests. Guardant sued first, also accusing Texas-based Natera of unlawful trade practices and unfair competition for what it claims are false claims about its test. Natera struck back with its own counterclaims.

Discovery has gotten heated in large part over the testimony of Hochster, an expert witness for Natera, and what he knew about a study, known as COBRA, focusing on the ctDNA tests for cancer.

The doctor got data about the study from a draft abstract which he had received from his Rutgers University colleague, a COBRA investigator, Bramhall wrote. But Natera did not realize that at the time, he added.

Senior U.S. District Judge Edward M. Chen of San Francisco, who will consider the sanctions motion next Tuesday, has been harshly critical of Quinn Emanuel lawyers, calling one of them a "fool" for believing Hochster's testimony about not remembering the emails about the COBRA study.

But during a hearing in July, he also expressed reluctance to exclude the results "unless the study itself and the results that were obtained were somehow tainted as a result."

Bramhall cited those comments to argue that sanctions blocking Natera's counterclaims, the COBRA study or Hochster's testimony are not justified.

He added that the 9th Circuit precedent that Guardant cites shouldn't apply because in that case, a judge dismissed claims "because the party concealed critical documents for years, lied about their existence, and produced them eight months after a jury verdict. None of that has occurred here."

Scolnick, however, wrote: "It has never been credible that Dr. Hochster forgot about his extensive emails relating to COBRA, or that Natera could believe Dr. Hochster had no COBRA-related emails," adding that the emails undermine Natera's "central argument."

He added that monetary sanctions would be insufficient. "This Court should not permit an expert to testify at trial who shirked his discovery obligations and then concealed relevant documents through false statements to the Court," Scolnick wrote. "Courts have excluded experts for far less egregious misconduct."

Jury selection for the trial is scheduled to start Nov. 5.