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Legal Ethics

McDermott’s Shared Tab for ‘Abuse of Advocacy’ is $4.3M in Attorney Fees

Posted Oct 2, 2008 7:53 AM CDT
By Debra Cassens Weiss

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McDermott, Will & Emery and its client Medtronic Inc. have been ordered to pay $4.3 million in attorney fees for “abuse of advocacy” in a patent case.

U.S. District Judge Richard Matsch of Denver imposed the sanction Tuesday for attorney fees incurred by Medtronic’s trial opponent BrainLAB, the Recorder reports. Both McDermott and Medtronic plan to appeal the decision.

In a ruling last February, Matsch found that McDermott lawyers had asked a jury to apply a broad reading of surgical-instrument patents on behalf of Medtronic even though he had ruled the patents were narrower. "At trial, [McDermott]'s conduct was in disregard for the duty of candor, reflecting an attitude of 'what can I get away with?' ” Matsch wrote at the time.

Earlier this year Medtronic was fined $10 million in a Massachusetts case for disregarding claims construction, the story says. Its firm was Dewey & LeBeouf.

Legal ethics expert Diane Karpman told the Recorder she sees a pattern in the sanctions. "The courts are sending a very clear message that they're not going to tolerate misbehavior," she said.

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