AngioDynamics, Inc. v. C.R. Bard, Inc.

AngioDynamics, Inc. v. C.R. Bard, Inc.

Opinion

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff AngioDynamics, Inc. brings this antitrust action against Defendants C.R. Bard, Inc. and Bard Access Systems, Inc. (collectively, "Bard"), asserting a claim of illegal tying in violation of Section 1 of the Sherman Act (codified at 15 U.S.C. § 1) under "per se" and "rule of reason" theories of liability. (Dkt. No. 1); see AngioDynamics, Inc. v. C.R. Bard, Inc., 537 F. Supp. 3d 273 (N.D.N.Y. 2021) (summary judgment decision); AngioDynamics, Inc. v. C.R. Bard, Inc., No. 17-cv-598, 2022 U.S. Dist. LEXIS 120384, 2022 WL 2643583 (N.D.N.Y. July 8, 2022) (motions in limine decision). The case is set for trial to begin on September 19, 2022. In this decision, the Court considers [*2]  AngioDynamics's proffer of evidence of lost sales relating to customer statements which it seeks to introduce under Federal Rule of Evidence 803(3). (See Dkt. Nos. 400, 402, 419, 424, 427).

II. BACKGROUND

AngioDynamics seeks to introduce certain hearsay statements of customers under the exception in Federal Rule of Evidence 803(3), under which "'statements of a customer as to his reasons for not dealing with a supplier are admissible for the limited purpose' of demonstrating the customer's motive, 'although not as evidence of the facts recited as furnishing the motives.'" AngioDynamics, 537 F. Supp. 3d at 319 (quoting Herman Schwabe, Inc. v. United Shoe Machinery Corp., 297 F.2d 906, 914 (2d Cir. 1962)) (brackets omitted). The Court directed AngioDynamics to make a pretrial proffer of lost sales from the relevant entities "as part of laying the foundation for the admission of such statements." AngioDynamics, 2022 U.S. Dist. LEXIS 120384, at *39 n.16, 2022 WL 2643583, at *13 n.16; see also, e.g., Discover Fin. Servs. v. Visa U.S.A. Inc., No. 04-cv-7844, 2008 U.S. Dist. LEXIS 80801, at *4, 2008 WL 4560707, at *1 (S.D.N.Y. Oct. 9, 2008) ("[T]estimony concerning the motivation of customers for ceasing to deal with a business is admissible under the 'state of mind' exception to the hearsay rule, provided that there is otherwise admissible proof that business was lost." (internal citation omitted)); Celebrity Cruises Inc. v. Essef Corp., 478 F. Supp. 2d 440, 447 (S.D.N.Y. 2007) (finding testimony regarding customer motivations admissible under the state of mind exception "provided that there is otherwise admissible proof that business was lost").

AngioDynamics submitted [*3]  an original proffer of lost sales, (Dkt. No. 400), to which Bard responded, (Dkt. No. 402). Presently before the Court is AngioDynamics's revised proffer which includes greater detail for each entity, (Dkt. No. 419); a subsequent submission identifying the Rule 803(3) statements at issue for each entity, (Dkt. No. 424); and Bard's response, (Dkt. No. 427).

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