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Healthpoint, Ltd. v. Ethex Corp.

Healthpoint, Ltd. v. Ethex Corp.

United States District Court for the Western District of Texas, San Antonio Division

July 14, 2004, Decided

CIVIL NO. SA-01-CA-646-OG

Opinion

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

TO: Honorable Orlando L. Garcia

United States District Judge

Pursuant to the Order of referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge 1 and consistent [*2]  with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(I)(B) and rule 1(d) of the Local Rules for the Assignment of Duties to United States Magistrate Judges in the Western District of Texas, District of Texas, the following report addressing the parties' cross-motions for summary judgment is submitted for your review and consideration.

Because the report addresses three motions for summary judgment, declarations and exhibits in support, and related documents, each reflecting the parties' exhaustive briefing of the issues, it is lengthy. The recommendations in the report could be affected by the District Judge's determination of Ethex's June 4, 2004 appeal 2 of the May 24, 2004 Order denying Ethex's motion to exclude evidence and testimony from Lane J. Brunner, Ph.D, 3 which is pending before the District Court, as well as the Court's disposition of Ethex's July 12, 2004 motion to exclude the report and survey of E. Mick [*3]  Kolassa, Ph.D and Brian C. Reisetter, Ph.D, 4 for which the briefing schedule has not yet expired. This case is scheduled for jury selection and trial before the District Judge on August 30, 2004. 5

I. JURISDICTION

The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, 1338, and 1367.

II. PROCEDURAL HISTORY

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2004 U.S. Dist. LEXIS 27500 *; 2004 WL 2359420

HEALTHPOINT, LTD., DPT LABORATORIES, LTD., and DFB PHARMACEUTICALS, INC., Plaintiffs, v. ETHEX CORPORATION and KV PHARMACEUTICALS, INC., Defendants.

Subsequent History: Motion denied by Healthpoint, Ltd. v. Ethex Corp., 2004 U.S. Dist. LEXIS 32446 (W.D. Tex., Aug. 5, 2004)

Magistrate's recommendation at Healthpoint, Ltd. v. Ethex Corp., 2004 U.S. Dist. LEXIS 27463 (W.D. Tex., Aug. 17, 2004)

Disposition: Magistrate's recommendation that Ethex's motion for partial summary judgment on plaintiff's claims of false advertising be denied, that Healthpoint's motion for partial summary judgment on its claims of false advertising be denied, that Ethex's motion for partial summary judgment on Healthpoint's claim of theft of trade secrets be denied, and that Healthpoint's alternative motion for continuance of the Court's ruling on Ethex's motion for partial summary judgment on the misappropriation of trade secrets claim be denied.

CORE TERMS

papain, argues, label, advertising, pharmaceutically, specifications, therapeutically, active ingredient, declaration, partial summary judgment, trade secret, re-labeled, consumers, Lanham Act, literally, substitution, marketing, ointment, summary judgment, products, alleges, tested, same amount, misleading, generic, debridement, pharmacists, collateral estoppel, deception, district court

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Discovery, Methods of Discovery, Supporting Materials, Opposing Materials, Judgments, Burdens of Proof, Motions for Summary Judgment, Appropriateness, Genuine Disputes, Materiality of Facts, Evidentiary Considerations, Movant Persuasion & Proof, Antitrust & Trade Law, Consumer Protection, False Advertising, Lanham Act, Business & Corporate Compliance, Federal Unfair Competition Law, Elements of False Advertising, Remedies, Damages, Monetary Damages, Torts, Business Torts, Unfair Business Practices, Elements, Preclusion of Judgments, Estoppel, Collateral Estoppel, Defenses, Demurrers & Objections, Affirmative Defenses, Estoppel, Trade Secrets Law, Misappropriation Actions, Elements of Misappropriation, Trade Secret Determination Factors, Generally Known, Confidentiality, Disclosures, Existence & Ownership, Use, Trade Secrets Law, Protection of Secrecy, Publication, Ready Availability, Independent Development, Accidental & Mistaken Disclosures, Nonprotected Information, Reverse Engineering