Miami attorney helps prove company’s technology was used improperly

Case: Energy Transportation Group v. William Demant Holding and Widex Hearing Aid Co.

Case no: 05-cv-00422

Description: Patent infringement

Filing date: June 23, 2005

Trial dates: Jan. 18-Feb. 4, 2008

Judge: Chief U.S. District Judge Gregory Sleet, Wilmington, Del.

Plaintiff lawyers: Marty Steinberg, Miami, Brian Buroker, Washington, and Maya Eckstein, Richmond, Va., Hunton & Williams

Defense lawyers: Mary Graham, Morris Nichols Arsht & Tunnell, Wilmington, Del., and William Mandir, Sughrue Mion, Washington
Details: New York-based ETG sued Widex and the holding company along with eight other defendants, alleging they infringed on its patented technology that prevents feedback in hearing aids.

The other defendants settled with ETG before trial. The plaintiff’s legal team argued the defendants incorporated ETG’s technology into its devices without licensing or royalty agreements.

The two remaining defendants countersued, claiming ETG’s patents were invalid because the technology was already known in the industry.

ETG has 20 operating companies in fields including natural gas transportation and medical device manufacturing. Widex and William Demant are Denmark-based hearing aid manufacturers.

Plaintiff case: Widex and Demant used the technology developed and patented by Harry Levitt, Richard Dugot and Kenneth Kopper, and Levitt worked for ETG’s predecessor companies, Steinberg said. ETG produced hearing aid products developed chiefly by Levitt.

Steinberg said the industry is an oligarchy of competitors including Widex and Demant. He said the original defendants colluded to keep prices high and bullied other competitors in a variety of ways including patent infringement.

The defendants obtained the technology through speeches given by Levitt and information circulated about the patents, Steinberg said.

“They were keenly aware of his patents,” he said. “They didn’t go to him or the company who owned the patents and say, ‘We’d like to license them,’ and say, ‘We’ll pay you royalties.’ They just used them.”

Key witnesses for the plaintiff included Levitt, ETG chairman and chief executive officer Kimball Chen and engineers who testified about the patents.

Plaintiff attorneys also hired a computer expert who deciphered both of the defendants’ computer codes and matched the source code to internal documents to prove the defendants had descriptions of the patents.

“When we started, they denied they used the same technology,” Steinberg said. “As we got into discovery, we got their records and their description of the technology was virtually identical” to the patents.

Defense case: Graham and Mandir did not return calls seeking comment. But in their answer and counterclaims, the defendants denied the validity of the ETG patents and denied they infringed on them.

The defense called employees who testified the technology was common knowledge and wasn’t unique to the ETG patents. They also used diagrams and charts to show their technology wasn’t identical.

Outcome: After deliberating for two days, the jury awarded ETG $31 million in damages and denied the defendants’ counterclaims. The jury ruled both defendants had infringed ETG’s patents but only Widex did it willfully.

Comments: “It will encourage others who confront these same defendants to go forward with their claims,” Steinberg said. “In the past, the way this industry dealt with outsiders was to ignore legitimate claims and depend on the fact that no one had the resources to take them on.”

Post verdict: The plaintiff team is seeking $11 million in attorney fees and $1.75 million in expert witness fees and wants the judge to treble damages to $93 million based on the infringement finding. The defense is seeking a new trial.

— Alana Roberts

Correction

The story above attributed a statement to attorney Marty Steinberg that was a summary of evidence. Steinberg was quoting from a report by the German Federal Cartel Office, which said the hearing aid industry is an oligopoly of competitors.



Employment

U.S. District Court, Miami

BJ’s settles over allegations that boss made racial insults

BJ's Wholesale Club agreed to pay $100,000 to two workers who claimed their boss regularly fired racial salvos at them.

Jesus Santos, who is Puerto Rican, said his store manager, who is Cuban, once said, among several alleged caustic statements, "You can't do anything right because you are a Puerto Rican."

William Lundy, who is black, said he also was harassed by the manager. Among the statements he was allegedly subjected to were: "Blacks are dumb. You can't learn because you are black."

Case: EEOC v. BJ's Wholesale Club Inc.

Case No.: 06-22452-CIV-GOLD

Plaintiff lawyers: Maria K. Boehringer, Boehringer Law Office, Boca Raton; Diana Vizcaino, Equal Employment Opportunity Commission, Miami

Defense lawyer: David J. Kerman, Jennifer L. Poole and Christine Lynne, Wilson Jackson Lewis, Miami

Motor vehicle

Duval Circuit Court

Judge awards bartender struck by drunken driver

A judge awarded $1.5 million to a bartender who was struck by a woman who drove through the bar’s front doors because she was refused service at closing time.

Ellen Ordoyne was closing McB's Lounge in Jacksonville for the night when Amy Mullee Fennell walked in and asked for a drink. Ordoyne refused because it was past last call.

Fennell left, got in her car and drove through the front doors. She killed one person, paralyzed two and injured others.

Fennell is serving a prison term for vehicular manslaughter. Ordoyne sustained fractures to her legs, ankles, arms, ribs and hip. She spent about a year in rehabilitation.

Case: Ordoyne v. Fennell

Case No.: 16-2006-CA-000256-XXXMA

Plaintiff lawyer: Donald M. Maciejewski, Zisser Robison Brown Nowlis & Maciejewski, Jacksonville

Defense lawyer: Christopher D. Ritchie, Boyd & Jenerette, Jacksonville

Products Liability

U.S. District Court, Orlando

Preacher awarded from ladder company after Christmas light fall

A man who fell from an extension ladder while hanging Christmas lights recovered $165,000.

The Rev. John Hamatie sustained a hip fracture as a result of his fall from a Louisville Ladder. His counsel argued the ladder was defectively designed because it bowed when it was fully extended, causing Hamatie to lose his balance and fall.

Defense counsel argued Hamatie misused the ladder. The jury found Louisville Ladder 60 percent at fault and Hamatie 40 percent at fault, which reduced the $275,000 award.

Case: Hamatie v. Louisville Ladder Inc,

Case No.: 6:06-cv-00817-GKS-KRS

Plaintiff lawyer: William C. Mitchell Jr., Keith R. Mitnik and Carolyn M. Salzmann, Morgan & Morgan, Orlando

Defense lawyer: Francis H. Brown III and Eugene Terk, Frilot Partridge, New Orleans; Daniel J. Gerber, Rumberger Kirk & Caldwell, Orlando

Motor vehicle

Lake Circuit Court

Motorcyclist recovers $137,000 after collision with car

A motorcyclist who sustained several fractures to his forearm in a collision with a car was awarded $137,000.

Alexander Marquez collided with the rear of a car driven by Donald Osterlund, who drove from a shopping center driveway and cut across five lanes of traffic.

Defense counsel contended Marquez was responsible for the crash, noting eyewitnesses saw him speeding up the road and doing wheelies for two miles before the collision.

Marquez required plates and screws for the four fractures in his forearm.

As a result, he had to quit his job as a carpenter.

Case: Marquez v. Osterlund

Case No.: 2006 CA 000667

Plaintiff lawyer: Carolyn M. Salzmann, Morgan & Morgan, Orlando

Defense lawyer: Michael M. Bell, Bell Roper & Koyhlmer, Orlando