Quinn Emanuel client sanctioned over expert testimony

U.S. District Judge Edward M. Chen sanctioned a company represented by Quinn Emanuel Urquhart & Sullivan LLP on Tuesday after the firm admitted an expert witness concealed emails and lied to the court in a Lanham Act dispute between two oncology testing companies that's set for trial on Nov. 5.

Chen "turned back the clock" on evidence submission, barring Natera Inc., Quinn Emanuel's client, from admitting most evidence accumulated after the initial March 11 trial date.

Quinn Emanuel attorneys admitted to Chen that they erred in not investigating the actions of a key oncology witness, Dr. Howard Hochster, who Chen said "lied" under oath about his early access to a clinical trial that was key to Natera's case. Guardant Health, Inc. v Natera, Inc., 21-cv-04062-EMC (N.D. Cal., filed May 27, 2021).

"I guess what I can say is we regret not connecting the dots earlier," Brian C. Cannon, a Quinn Emanuel partner, said in court Tuesday. "We should have investigated further. We should have dug into the way that he got that data. We did not and we do apologize."

The case stems from a $100 million false advertising lawsuit Guardant Health Inc., a rival oncology testing company, filed against Natera in May 2021. Guardant, represented by Keller/Anderle LLP, claimed that Natera launched a "false and misleading" ad campaign against one of its new testing products.

Natera quickly countersued, claiming that Guardant's "misleading commercial statements" about the efficacy of the product caused Natera's competing product to lose sales.

Tuesday's motion for sanctions centered on Hochster's testimony, where he opined that a cancelled clinical trial demonstrated "that Guardant's test design was susceptible to false positives, and that false positives can lead to negative undesirable health consequences."

Jennifer Keller of Keller/Anderle LLP and one of Guardant's lead attorneys, argued that Quinn Emanuel and Hochster worked in tandem to conceal the discovery of 1,500 emails detailing Hochster's early access to the test results, a claim he repeatedly denied.

"[Quinn Emanuel] filed briefs opposing our motion and appeared at the February 26 and July 26 hearings, knowing all along that Dr. Hochster had sent them these confidential COBRA results that he had gotten through his emails into the COBRA investigator in September," Keller said in court Tuesday. "Your honor, in the supplemental opposition, they're still not coming clean to you. They're still not being straight with your honor."

Cannon rebutted, denying that the firm had knowledge of Hochster's actions but added, "We did not know he had the [date] ... One thing we said in the briefs, which is true and remains true, is that, to some degree, we were learning in real time the significance of all this information and all this data.

"We knew the trials had been shut down because a public letter had been sent out, but the significance of the data, the finality of the data, that really it truly, did not become final, and did not become truly relevant until" an American Society of Colon Oncology Gastrointestinal conference in January, he added.

The conference Cannon referenced in his rebuttal is the annual ASCO GI Cancers Symposium, where the latest scientific findings related to treatments of gastrointestinal cancer and related illnesses are presented.

Despite the COBRA Trial being cancelled by its sponsor in the summer 2023, the findings were displayed at the January 2024 conference.

Prior to the reveal of the COBRA Trial's findings, trial in the case was set to begin on March 11 and the parties stated in an October 2023 minute order that discovery was complete.

However, the trial date was pushed back after one of Cannon's colleagues, Quinn Emanuel partner Kevin P.B. Johnson, sent a Feb. 26 letter to Chen explaining the importance of these findings to the case.

"As this Court knows, this case arises out of claims of false advertising asserted by both parties. The COBRA Trial results are directly relevant to technical questions at the heart of this case regarding the truth or falsity of the parties' advertisements," Johnson wrote.

Chen eventually agreed with the parties to move the trial date back, a decision he said he regretted during Tuesday's hearing. "If I knew then what I know now, I wouldn't have opened that door," Chen said.

Chen told the parties at the end of the hearing that he would issue an order memorializing the ban on COBRA Trial related evidence but allowed Natera to offer Hochster to the jury for a very limited purpose. Chen added that the jury will be informed of his "lies" to the court.

"This is federal court; there will be some instruction. The idea that there will be no instruction when he lied under oath, I won't tolerate that," Chen told the Quinn Emanuel lawyers. The parties will appear for the final pretrial conference on Nov. 4.