Anonymized, Aggregate Patient Data Subpoenaed in Antitrust Suit over Medical Devices

On Wednesday, biotech company Biosense Webster, Inc., which is within the Johnson & Johnson family of companies, filed a motion to enforce a subpoena against Abbott Laboratories in the Northern District of Illinois, seeking evidence related to a pending antitrust action in the Central District of California. The subpoena from Biosense seeks a corporate witness deposition, as well Abbott’s sales data, which Biosense claims can be anonymized and aggregated, but Abbot apparently claims contain confidential customer data.

The underlying California federal case, which was filed in October 2019, is based in antitrust, with plaintiff Innovative Health LLC alleging that Biosense monopolized and restrained trade regarding high-density mapping catheters and ultrasound catheters for electrophysiology studies. Biosense has filed multiple motions to dismiss, and while the court has granted some motions in part, the case has continued on other claims. The court’s most-recent denial of Biosense’s motion to dismiss was in December 2020. Discovery in that litigation is scheduled to close in a few weeks: on September 21.

Earlier this year, Biosesense subpoenaed third-party Abbott, seeking information that Biosense states will aid its defense. In particular, Biosense states that it seeks Abbott’s data to counter Plaintiff Innovative Health’s argument that Biosense Charged supercompetitive prices. So Abbott’s data, according to Biosense, will help define the market, as well as counter allegations of anticompetitive effects.  

While Abbott did provide some data in July, Biosense acknowledges that Abbot “continued to object, … citing concerns about disclosing confidential customer sales data.” Biosense claims that Abbot has not produced the remaining data, and it also refuses to provide a corporate witness for a half-day deposition.

Biosense claims that in its “months of negotiations and concessions” with Abbot, it made several concessions, including permitting the data to be anonymized and aggregated (by month). But the motion is necessary because the parties have reached an impasse.

Because there are only a few weeks before the California litigation’s looming discovery deadline, it is unclear whether the Illinois court will consider and rule upon Biosense’s motion in time for Abbot to provide the data and corporate representative — all before the close of discovery on September 21.

Biosense is represented by Figliulo & Silverman, P.C., as well as Cravath, Swaine & Moore LLP