Sweeping Victory for Waymaker In Penile Implant Trade Secrets 8-0 Jury Trial Win

A Los Angeles federal jury on Friday, June 16, 2023 ruled overwhelmingly in favor of Waymaker client Dr. James Elist as it invalidated two patents and found that a rival urologist stole trade secrets from Elist in a case involving the first FDA-approved cosmetic penile implant. The high-profile case received coverage by Law360 and Daily Journal.

The sweeping verdict means that Waymaker client Dr. James Elist will be able to keep the defendant’s rival device off the market. Defendant Dr. Robert Cornell viewed several of Elist’s surgeries in 2018 to learn how to install Elist’s “Penuma” implant. Dr. Cornell had claimed he had asked a mere three questions during the surgeries, an assertion Partner Ryan Baker attacked in closing. Several other witnesses testified that Dr. Cornell asked numerous questions about the procedure and potential improvements to the implant device. “Is it credible that Dr. Cornell claims he asked fewer questions than he witnessed surgeries?” Baker asked the jury. Baker argued that the evidence showed that Cornell signed a nondisclosure agreement with his “fingers crossed” and within months of viewing Elist’s Penuma surgery, filed patent applications based on Elist’s trade secrets.

Those patents were an attempt “to build a legal moat that would prevent the plaintiffs from using their own ideas,” Baker said. After the verdict was read on the ninth day of the trial, Elist told Law360 that he wanted to “thank God” and that the verdict shows that people are “responsible for their actions” and that “the truth, and only the truth, will come out.”

The jury was presented with 52 liability questions and answered 48 in favor of Waymaker’s clients. The court will now consider plaintiffs’ damages claim, which are based on a hypothetical reasonable royalty. According to Baker, “the damages question was a challenge in this case, because we had obtained a preliminary injunction before the defendants were able to sell a single product, but the firm’s clients were substantially harmed by defendants’ publication of trade secrets.”

The victory was nearly absolute as the jury went Waymaker’s way on every single claim and almost every defendant on every single claim in a case the firm handled from inception more than three years ago. Among the victories along the way, Waymaker won a preliminary injunction, defeated a motion to amend the complaint, defeated a motion for summary judgment and won claims on summary adjudication, defeated Daubert motions and won a $100,000 motion for contempt sanctions.

The Waymaker trial team included Partners Baker, Scott Malzahn and Donald Pepperman, and Associates Sam Meehan and Emily Stierwalt. Malzahn cross examined the defendant’s experts and presented IMD’s experts to show that there were confidential meetings regarding the very trade secret concepts at issue more than a year before the alleged theft. Pepperman identified the reasonably royalty damages theory as a court issue, Meehan won two critical motions to exclude distracting arguments from the defense team, and Stierwalt, who according to the jury, did “a great job with a tough witness,” helped tell the story about what really happened in the operating room when Dr. Cornell received training from Dr. Elist.

International Medical Devices Inc. CEO Dr. Jonathan Elist told the Waymaker team: “You were superb. You’ve each been amazing across this three-plus year journey together. You’ve managed to win every single major motion, and you got a jury verdict that was a total sweep.”

The case was International Medical Devices Inc. et al. v. Robert Cornell et al., case number 2:20-cv-03503, in the U.S. District Court for the Central District of California.

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