17 1302 documents

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

NOTICE OF DOCKETING

17-1302 - CardiAQ Valve Technologies v. Neovasc Inc.

Date of docketing: December 1, 2016

Appeal from: United States District Court for the District of Massachusetts case no. 1:14-cv-12405-ADB

Appellant(s): Neovasc Inc., Neovasc Tiara Inc.

Critical dates include:

• Date of docketing. See Fed. Cir. R. 12. • Entry of appearance. (Due within 14 days of the date of docketing.) See Fed. Cir. R. 47.3. • Certificate of interest. (Due within 14 days of the date of docketing.) See Fed. Cir. R. 47.4. • Docketing Statement. (Due within 14 days of the date of docketing or within 30 days if the United States or

its officer or agency is a party in the appeal.) [Only in cases where all parties are represented by counsel. See Fed. Cir. R. 33.1 and the mediation guidelines available at www.cafc.uscourts.gov.]

• Requests for extensions of time. See Fed. Cir. R. 26 and 27. N.B. Delayed requests are not favored by the court.

• Briefs. See Fed. Cir. R. 31. N.B. You will not receive a separate briefing schedule from the Clerk's Office.

• Settlement discussions. See Fed. Cir. R. 33. • ORAL ARGUMENT SCHEDULE CONFLICTS: Counsel should advise the clerk in writing within 30 days

once briefing is completed of potential scheduling conflicts or as soon as they are known and should not wait until an actual conflict arises. Once scheduled, a case will not be postponed except on motion showing compelling reasons. See Practice Note following Fed. Cir. R. 34.

The official caption is reflected on the electronic docket under the listing of the parties and counsel. The Rules of Practice and required forms are available at www.cafc.uscourts.gov.

Peter R. Marksteiner Clerk of Court

cc: United States District Court for the District of Massachusetts Charles Tait Graves John B. Sganga Jr.

Case: 17-1302 Document: 1-1 Page: 1 Filed: 12/01/2016 (1 of 142)

NEOVASC’S NOTICE OF APPEAL 1 CASE NO. 1:14-CV-12405-ADB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

CARDIAQ VALVE TECHNOLOGIES, INC.,

Plaintiff,

v.

NEOVASC INC. and NEOVASC TIARA INC.,

Defendants.

Civil Action No. 14-cv-12405-ADB

DEFENDANTS’ NOTICE OF APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Defendants Neovasc Inc. and Neovasc Tiara Inc. hereby appeal to the United States

Court of Appeals for the Federal Circuit from the Final Judgment entered on November 21, 2016

(ECF No. 598), and from any and all orders, rulings, opinions, and/or conclusions of the Court

adverse to Neovasc Inc. and Neovasc Tiara Inc. including, without limitation, the Court’s

Omnibus Memorandum and Order Resolving Motions To Exclude and Motions In Limine (ECF

No. 418), Memorandum and Order resolving renewed motions for judgment as a matter of law

(ECF No. 529), and Memorandum and Order resolving enhanced damages and motions for a

new trial on damages and trade secrets 4–6 (ECF No. 583).

Case 1:14-cv-12405-ADB Document 621 Filed 12/01/16 Page 1 of 4

135



Dated: November 30, 2016 Respectfully submitted,

/s/ Charles T. Graves Charles T. Graves (pro hac vice)

Douglas H. Carsten (pro hac vice) Peter S. Kang (pro hac vice) WILSON SONSINI GOODRICH & ROSATI, P.C. 12235 El Camino Real, Suite 200 San Diego, CA 92130 Phone: 858-350-2305 Fax: 858-350-2399 Email: [email protected] Email: [email protected]

John P. Flynn (pro hac vice) Charles T. Graves (pro hac vice) Corina I. Cacovean (pro hac vice) Joshua A. Baskin (pro hac vice) WILSON SONSINI GOODRICH & ROSATI, P.C. One Market Plaza Spear Tower, Suite 3300 San Francisco, CA 94105 Phone: 415-947-2109 Fax: 415-947-2099 Email: [email protected]; [email protected] [email protected]; [email protected]

Veronica Susana Ascarrunz (pro hac vice) WILSON SONSINI GOODRICH & ROSATI, P.C. 1700 K Street, NW, Fifth Floor Washington, DC 20006 Phone : 202-973-8812 Fax: 202-973-8899 Email: [email protected]

Joel C. Boehm (pro hac vice) WILSON SONSINI GOODRICH & ROSATI, P.C. 900 South Capital of Texas Hwy Las Cimas IV, Fifth Floor Austin, TX 78746-5546 Phone: 512-338-5400 Fax: 512-338-5499 Email: [email protected]


136



Alan D. Rose (BBO #427280) Michael L. Chinitz (BBO #552915) Meredith Wilson Doty (BBO #652220) B. Aidan Flanagan (BBO #675667) ROSE, CHINITZ & ROSEOne Beacon Street, 23rd Floor Boston, MA 02108 Phone: 617-536-0040 Fax: 617-536-4400 Email: [email protected] [email protected] [email protected] [email protected]

Of Counsel:

Matthew M. Wolf John E. Nilsson R. Reeves Anderson Robert Leider* 601 Massachusetts Ave., NW Washington, DC 20001-3743 Telephone: +1 202.942.5000 Fax: +1 202.942.5999 [email protected] [email protected] [email protected] [email protected]

*Admitted only in Illinois and New York; practicing law in the District of Columbia pending approval of application for admission under the supervision of Firm principals who are D.C. Bar members


137



CERTIFICATE OF SERVICE

I, Charles T. Graves, hereby certify that on November 30, 2016 the foregoing document

was filed through the ECF system and will be sent electronically to the registered participants as

identified on the Notice of Electronic Filing.

/s/ Charles T. Graves Charles T. Graves (admitted pro hac vice)


138


120

FORM 7. Appeal Information Sheet

FEDERAL CIRCUIT APPEAL INFORMATION SHEET

___ United States District Court for the ____________________________________ ___ United States Court of International Trade ___ United States Court of Federal Claims ___ United States Court of Appeals for Veterans ClaimsType of case: ________________________________________

_____________________ v. _____________________

(List all parties. Use an asterisk to indicate dismissed or withdrawn parties. Use a separate sheet if needed. Explain any discrepancy with the caption used on the judgment, order, or opinion.)Docket No. _____________________ Date of Judgment or Order __________________Cross or related appeal? __________ Date of Notice of Appeal __________________Appellant is: _____ Plaintiff _____Defendant _____Other (explain)_________________FEES: Court of Appeals docket fee paid? _____Yes _____No U.S. Appeal? _____Yes _____No In forma pauperis? _____Yes _____NoIs this matter under seal? _____Yes _____NoCOUNSEL: (List name, firm, address, and telephone of lead counsel for each party. Indicate party represented. Use separate sheet if needed.)____________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ _______________________________________________COURT REPORTER: (Name and telephone): _______________________________________

IMPORTANT: Attach a copy of the judgment or order appealed from and any supporting opinion or memorandum. Forward together with a copy of the notice of appeal and certified docket entries.

Clerk of CourtUnited States Court of Appeals for the Federal Circuit

717 Madison Place, NWWashington, DC 20439

Form 7

✔ DISTRICT OF MASSACHUSETTS

PATENT INFRINGEMENT

CardiAQ Valve Technologies, Inc. Neovasc Inc. et al

14cv12405-ADB November 21, 2016

December 1, 2016

✔

✔

✔

✔

✔

Brian C. Horne Knobbe Martens Olsen & Bear LLP 1901 Avenue of the Stars Suite 1500 Los Angeles CA 90067 310-551-3450 [email protected]

Charles Graves Wilson Sonsini Goodrich Rosati, PC One Market Spear Tower Suite 3300 San Francisco CA 94105 415-947-2156 [email protected]

Carol Scott (617)-330-1377


APPEAL,PATENT

United States District CourtDistrict of Massachusetts (Boston)

CIVIL DOCKET FOR CASE #: 1:14−cv−12405−ADB

CardiAQ Valve Technologies, Inc. v. Neovasc Inc. et alAssigned to: Judge Allison D. Burroughsrelated Case: 1:16−cv−12246−ADBCause: 35:145 Patent Infringement

Date Filed: 06/06/2014Jury Demand: BothNature of Suit: 830 PatentJurisdiction: Federal Question

Plaintiff

CardiAQ Valve Technologies, Inc. represented byBrian C. HorneKnobbe, Martens, Olson & Bear, LLP1901 Avenue of the StarsSuite 1500Los Angeles, CA 90067(310) 551−3450Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Christy G. LeaKnobbe Martens2040 Main Street14th FloorIrvine, CA949−760−0404Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Hans L. MayerKnobbe, Martens, Olson & Bear LLP14th Floor2040 Main StreetIrvine, CA 92614−9261949−760−0404Fax: 949−760−0404Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Jenna C. KelleherKnobbe Martens2040 Main Street14th FloorIrvine, CA 92614

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https://ecf.mad.uscourts.gov/cgi-bin/DktRpt.pl?161450

mailto:[email protected]



(949) 949−0404Email: [email protected]: 08/12/2016LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

John W. HolcombKnobbe, Martens, Olsen & Bear2040 Main StreetFourteenth FloorIrvine, CA 92614949−760−0404Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

John B. Sganga , Jr.Knobbe Martens Olson & Bear LLP2400 Main Street14th FloorIrvine, CA 92614949−760−0404Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Joshua StowellKnobbe Martens2040 Main Street14th FloorIrvine, CA 92614949−760−0404Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Mark A. SpeegleKnobbe Martens2040 Main Street14th FloorIrvine, CA949−760−0404Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Vito A. Canuso , III

2







9582 Featherhill DriveVilla Park, CA 92861714−941−0579Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Devon H.M. VillarrealPartridge Snow & Hahn30 Federal StreetBoston, MA 02110617−292−7900Email: [email protected] TO BE NOTICED

Randall T. Weeks , Jr.Partridge Snow & Hahn, LLP128 Union StreetNew Bedford, MA 02740401−861−8200Fax: 401−861−8210Email: [email protected] TO BE NOTICED

Robert J. KalerHolland & Knight LLP10 St. James AvenueBoston, MA 02116617−854−1443Fax: 617−523−6850Email: [email protected] TO BE NOTICED

V.

Defendant

Neovasc Inc. represented byCharles Tait GravesWilson, Sonsini, Goodrich Rosati, P.C.One Market Spear TowerSuite 3300San Francisco, CA 94105415−947−2156Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Colleen BalWilson, Sonsini, Goodrich & Rosati650 Page Mill Road

3







Palo Alto, CA 94304650−493−9300Fax: 650−565−5100Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Corina CacoveanWilson Sonsini Goodrich & RosatiOne Market PlazaSpear TowerSuite 3300San Francisco, CA 94105(415) 947−2000Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Douglas H. CarstenWILSON SONSINI GOODRICH &ROSATI12235 El Camino RealSuite 200San Diego, CA 92130858−350−2300Fax: 858−350−2399Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Elham Firouzi SteinerWilson Sonsini Goodrich & Rosati12235 El Camino RealSuite 200San Diego, CA 92130(858) 350−2300Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Joel C. BoehmWILSON SONSINI GOODRICH&ROSATI900 South Capital of Texas Highway LasCimas IV5th FloorAustin, TX 78746(512) 338−5400

4






Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

John FlynnWilson Sonsini Goodrich & RosatiOne Market PlazaSpear TowerSuite 3300San Francisco, CA 94105(415) 947−2000Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Joshua A. BaskinWILSON SONSINI GOODRICH&ROSATIOne Market PlazaSpear TowerSuite 3300San Francisco, CA 94105(415) 947−2000Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Michael L. ChinitzRose, Chinitz & Rose1 Beacon Street23rd FloorBoston, MA 02108617−536−0040Fax: 617−536−4400Email: mlc@rose−law.netLEAD ATTORNEYATTORNEY TO BE NOTICED

Peter S. KangWilson Sonsini Goodrich & Rosati, PC12235 El Camino RealSuite 200San Diego, CA 92130−3002(858) 350−2300Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

5







Shaun R. SnaderWilson Sonsini Goodrich & Rosati, PC1700 K Street NWFifth FloorWashington, DC 20006−3817(202) 973−8800Email: [email protected]: 11/20/2014LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Veronica AscarrunzFoley & Lardner LLP3000 K Street NW, Suite 500Washington, DC 20007−5143(202) 973−8812Email: [email protected] ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Alan D. Rose , Sr.Rose, Chinitz & RoseOne Beacon Street23rd FloorBoston, MA 02108617−536−0040Fax: 617−536−4400Email: adr@rose−law.netATTORNEY TO BE NOTICED

Bernard A. FlanaganRose, Chinitz & RoseOne Beacon Street23rd FloorBoston, MA 02108617−536−0040Email: baf@rose−law.netATTORNEY TO BE NOTICED

Gerard D. O'SheaWilson Sonsini Goodrich & Rosati P.C.1301 Avenue of the Americas, 40th Flr.New York, NY 10019212−497−7785Email: [email protected] TO BE NOTICED

Meredith Wilson DotyRose, Chinitz & RoseOne Beacon Street, Fourth Floor

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Boston, MA 02108617−536−0040Fax: 617−536−4000Email: mwd@rose−law.netATTORNEY TO BE NOTICED

Defendant

Neovasc Tiara Inc. represented byCharles Tait Graves(See above for address)LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Colleen Bal(See above for address)LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Corina Cacovean(See above for address)LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Douglas H. Carsten(See above for address)LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Elham Firouzi Steiner(See above for address)LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Joel C. Boehm(See above for address)LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

John Flynn(See above for address)LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Joshua A. Baskin(See above for address)LEAD ATTORNEY

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PRO HAC VICEATTORNEY TO BE NOTICED

Michael L. Chinitz(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED

Peter S. Kang(See above for address)LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Shaun R. Snader(See above for address)TERMINATED: 11/20/2014LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Veronica Ascarrunz(See above for address)LEAD ATTORNEYPRO HAC VICEATTORNEY TO BE NOTICED

Alan D. Rose , Sr.(See above for address)ATTORNEY TO BE NOTICED

Bernard A. Flanagan(See above for address)ATTORNEY TO BE NOTICED

Gerard D. O'Shea(See above for address)ATTORNEY TO BE NOTICED

Meredith Wilson Doty(See above for address)ATTORNEY TO BE NOTICED

Mediator

Judge Jennifer C. BoalTERMINATED: 11/06/2015

Date Filed # Page Docket Text

06/06/2014 1 COMPLAINT against Neovasc Tiara Inc., Neovasc Inc. Filing fee: $ 400,receipt number 0101−5043823 (Fee Status: Filing Fee paid), filed by CardiAQ

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https://ecf.mad.uscourts.gov/doc1/09506193753?caseid=161450&de_seq_num=4&hdr=1&pdf_header=1&pdf_toggle_possible=1

Valve Technologies, Inc.. (Attachments: # 1 Civil Cover Sheet, # 2Supplement)(Weeks, Randall) (Entered: 06/06/2014)

06/06/2014 2 CORPORATE DISCLOSURE STATEMENT by CardiAQ ValveTechnologies, Inc.. (Weeks, Randall) (Entered: 06/06/2014)

06/06/2014 3 EXHIBIT s to Complaint by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5Exhibit E)(Weeks, Randall) (Entered: 06/06/2014)

06/06/2014 4 ELECTRONIC NOTICE of Case Assignment. Judge Nathaniel M. Gortonassigned to case. If the trial Judge issues an Order of Reference of any matterin this case to a Magistrate Judge, the matter will be transmitted to MagistrateJudge Marianne B. Bowler. (Abaid, Kimberly) (Entered: 06/06/2014)

06/06/2014 5 Summons Issued as to Neovasc Inc., Neovasc Tiara Inc.. Counsel receivingthis notice electronically should download this summons, complete one foreach defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1.Summons will be mailed to plaintiff(s) not receiving notice electronicallyfor completion of service. (Flaherty, Elaine) (Entered: 06/06/2014)

07/21/2014 6 SUMMONS Returned Executed Neovasc Inc. served on 7/8/2014, answer due7/29/2014. (Weeks, Randall) (Entered: 07/21/2014)

07/21/2014 7 SUMMONS Returned Executed Neovasc Tiara Inc. served on 7/8/2014,answer due 7/29/2014. (Weeks, Randall) (Entered: 07/21/2014)

07/25/2014 8 MOTION for Leave to Appear Pro Hac Vice for admission of Vito A. Canuso,III Filing fee: $ 100, receipt number 0101−5119191 by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Exhibit A)(Weeks, Randall) (Entered:07/25/2014)

07/25/2014 9 MOTION for Leave to Appear Pro Hac Vice for admission of John W.Holcomb Filing fee: $ 100, receipt number 0101−5119234 by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Exhibit A)(Weeks, Randall) (Entered:07/25/2014)

07/25/2014 10 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 8Motion for Leave to Appear Pro Hac Vice Added Vito A. Canuso, III.;granting 9 Motion for Leave to Appear Pro Hac Vice Added John W.Holcomb Attorneys admitted Pro Hac Vice must register for electronicfiling if the attorney does not already have an ECF account in this district.To register go to the Court website at www.mad.uscourts.gov. Select CaseInformation, then Electronic Filing (CM/ECF) and go to the CM/ECFRegistration Form. (Moore, Kellyann) (Entered: 07/25/2014)

07/28/2014 11 MOTION for Leave to Appear Pro Hac Vice for admission of John B. Sganga,Jr. Filing fee: $ 100, receipt number 0101−5121334 by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Exhibit A)(Weeks, Randall) (Entered:07/28/2014)

07/29/2014 12 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 11Motion for Leave to Appear Pro Hac Vice Added John B. Sganga, Jr.Attorneys admitted Pro Hac Vice must register for electronic filing if theattorney does not already have an ECF account in this district. To registergo to the Court website at www.mad.uscourts.gov. Select Case

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Information, then Electronic Filing (CM/ECF) and go to the CM/ECFRegistration Form. (Moore, Kellyann) (Entered: 07/29/2014)

07/29/2014 13 MOTION for Leave to Appear Pro Hac Vice for admission of Charles TaitGraves Filing fee: $ 100, receipt number 0101−5123858 by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Exhibit A, # 2 Text of ProposedOrder)(O'Shea, Gerard) (Entered: 07/29/2014)

07/29/2014 14 MOTION for Leave to Appear Pro Hac Vice for admission of Douglas H.Carsten Filing fee: $ 100, receipt number 0101−5123988 by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Exhibit A, # 2 Text of ProposedOrder)(O'Shea, Gerard) (Entered: 07/29/2014)

07/29/2014 15 MOTION for Leave to Appear Pro Hac Vice for admission of Peter S. KangFiling fee: $ 100, receipt number 0101−5124006 by Neovasc Inc., NeovascTiara Inc.. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(O'Shea,Gerard) (Entered: 07/29/2014)

07/29/2014 16 MOTION for Leave to Appear Pro Hac Vice for admission of Shaun R.Snader Filing fee: $ 100, receipt number 0101−5124022 by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Exhibit A, # 2 Text of ProposedOrder)(O'Shea, Gerard) (Entered: 07/29/2014)

07/29/2014 17 MOTION to Dismiss Claims for Correction of Inventorship, Fraud, andUnfair and Deceptive Trade Practices by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Text of Proposed Order)(O'Shea, Gerard) (Entered:07/29/2014)

07/29/2014 18 MEMORANDUM in Support re 17 MOTION to Dismiss Claims forCorrection of Inventorship, Fraud, and Unfair and Deceptive Trade Practicesfiled by Neovasc Inc., Neovasc Tiara Inc.. (O'Shea, Gerard) (Entered:07/29/2014)

07/29/2014 19 MOTION to Transfer Case to Central District of California. by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Text of Proposed Order)(O'Shea,Gerard) (Entered: 07/29/2014)

07/29/2014 20 MEMORANDUM in Support re 19 MOTION to Transfer Case to CentralDistrict of California. filed by Neovasc Inc., Neovasc Tiara Inc.. (O'Shea,Gerard) (Entered: 07/29/2014)

07/29/2014 21 DECLARATION re 20 Memorandum in Support of Motion, 19 MOTION toTransfer Case to Central District of California. of Brian McPherson byNeovasc Inc., Neovasc Tiara Inc.. (O'Shea, Gerard) (Entered: 07/29/2014)

07/29/2014 22 DECLARATION re 20 Memorandum in Support of Motion, 21 Declaration,19 MOTION to Transfer Case to Central District of California. of Shaun R.Snader by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 ExhibitA−S)(O'Shea, Gerard) (Entered: 07/29/2014)

07/30/2014 23 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 13Motion for Leave to Appear Pro Hac Vice Added Charles Tait Graves.granting 14 Motion for Leave to Appear Pro Hac Vice Added Douglas H.Carsten; granting 15 Motion for Leave to Appear Pro Hac Vice Added Peter S.Kang.; granting 16 Motion for Leave to Appear Pro Hac Vice Added Shaun R.Snader. Attorneys admitted Pro Hac Vice must register for electronic

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filing if the attorney does not already have an ECF account in this district.To register go to the Court website at www.mad.uscourts.gov. Select CaseInformation, then Electronic Filing (CM/ECF) and go to the CM/ECFRegistration Form. (Moore, Kellyann) (Entered: 07/30/2014)

08/12/2014 24 AMENDED COMPLAINT against Neovasc Tiara Inc., Neovasc Inc., filed byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit A, # 2 ExhibitB, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Weeks, Randall) (Entered:08/12/2014)

08/12/2014 25 Opposition re 19 MOTION to Transfer Case to Central District of California.filed by CardiAQ Valve Technologies, Inc.. (Weeks, Randall) (Entered:08/12/2014)

08/12/2014 26 AFFIDAVIT in Opposition re 19 MOTION to Transfer Case to CentralDistrict of California. filed by CardiAQ Valve Technologies, Inc.. (Weeks,Randall) (Entered: 08/12/2014)

08/12/2014 27 AFFIDAVIT in Opposition re 19 MOTION to Transfer Case to CentralDistrict of California. filed by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Weeks, Randall)(Entered: 08/12/2014)

08/12/2014 28 MEMORANDUM in Opposition re 17 MOTION to Dismiss Claims forCorrection of Inventorship, Fraud, and Unfair and Deceptive Trade Practicesfiled by CardiAQ Valve Technologies, Inc.. (Weeks, Randall) (Entered:08/12/2014)

08/13/2014 29 CORPORATE DISCLOSURE STATEMENT by Neovasc Inc., Neovasc TiaraInc.. (O'Shea, Gerard) (Entered: 08/13/2014)

08/19/2014 30 MOTION for Leave to File Reply Memorandum in Support of Neovasc'sMotion to Transfer Venue by Neovasc Inc., Neovasc Tiara Inc..(Snader,Shaun) (Entered: 08/19/2014)

08/19/2014 31 MEMORANDUM in Support re 30 MOTION for Leave to File ReplyMemorandum in Support of Neovasc's Motion to Transfer Venue, 19MOTION to Transfer Case to Central District of California. filed by NeovascInc., Neovasc Tiara Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Snader,Shaun) (Entered: 08/19/2014)

08/19/2014 32 Opposition re 30 MOTION for Leave to File Reply Memorandum in Supportof Neovasc's Motion to Transfer Venue filed by CardiAQ Valve Technologies,Inc.. (Sganga, John) (Entered: 08/19/2014)

08/20/2014 33 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 30Motion for Leave to File Document ; Counsel using the Electronic Case FilingSystem should now file the document for which leave to file has been grantedin accordance with the CM/ECF Administrative Procedures. Counsel mustinclude − Leave to file granted on (date of order)− in the caption of thedocument. REPLY MEMORANDUM NOT TO EXCEED 10 PAGES. (Patch,Christine) (Entered: 08/20/2014)

08/20/2014 34 NOTICE by Neovasc Inc., Neovasc Tiara Inc. Notice of Mootness of theComplaint (Snader, Shaun) (Entered: 08/20/2014)

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08/20/2014 35 REPLY to Response to 19 MOTION to Transfer Case to Central District ofCalifornia. filed by Neovasc Inc., Neovasc Tiara Inc.. (Snader, Shaun)(Entered: 08/20/2014)

08/20/2014 36 DECLARATION re 35 Reply to Response to Motion, 19 MOTION toTransfer Case to Central District of California. by Neovasc Inc., NeovascTiara Inc.. (Snader, Shaun) (Entered: 08/20/2014)

08/21/2014 37 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. In light of thefiling of the Notice of Mootness (document 34 ) the Defendants' Motion toDismiss, document 17 , is terminated. (Moore, Kellyann) (Entered:08/21/2014)

08/28/2014 38 MOTION to Dismiss Plaintiff's Claims for Correction of Inventorship, Fraud,and Unfair and Deceptive Trade Practices from the First Amended Complaintby Neovasc Inc., Neovasc Tiara Inc..(Snader, Shaun) (Entered: 08/28/2014)

08/28/2014 39 MEMORANDUM in Support re 38 MOTION to Dismiss Plaintiff's Claims forCorrection of Inventorship, Fraud, and Unfair and Deceptive Trade Practicesfrom the First Amended Complaint filed by Neovasc Inc., Neovasc Tiara Inc..(Snader, Shaun) (Entered: 08/28/2014)

09/11/2014 40 Opposition re 38 MOTION to Dismiss Plaintiff's Claims for Correction ofInventorship, Fraud, and Unfair and Deceptive Trade Practices from the FirstAmended Complaint filed by CardiAQ Valve Technologies, Inc.. (Holcomb,John) (Entered: 09/11/2014)

09/11/2014 41 MEMORANDUM in Opposition re 38 MOTION to Dismiss Plaintiff's Claimsfor Correction of Inventorship, Fraud, and Unfair and Deceptive TradePractices from the First Amended Complaint filed by CardiAQ ValveTechnologies, Inc.. (Holcomb, John) (Entered: 09/11/2014)

10/03/2014 42 Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM ANDORDER: "Accordingly, defendants' motion to transfer venue (Docket No. 19 )is DENIED. So ordered."(Moore, Kellyann) (Entered: 10/03/2014)

10/07/2014 43 NOTICE of Scheduling Conference Scheduling Conference set for 10/30/201402:30 PM in Courtroom 4 before Judge Nathaniel M. Gorton. COUNSELSHOULD BE PREPARED TO ARGUE ALL PENDING MOTIONSBEFORE THE COURT.(Patch, Christine) (Entered: 10/07/2014)

10/17/2014 44 ELECTRONIC NOTICE OF RESCHEDULING SchedulingConference/Motion Hearing set for 11/5/2014 11:00 AM in Courtroom 4before Judge Nathaniel M. Gorton. (Patch, Christine) (Entered: 10/17/2014)

10/21/2014 45 NOTICE of Appearance by Michael L. Chinitz on behalf of Neovasc Inc.,Neovasc Tiara Inc. (Chinitz, Michael) (Entered: 10/21/2014)

10/21/2014 46 NOTICE of Appearance by Meredith Wilson Doty on behalf of Neovasc Inc.,Neovasc Tiara Inc. (Doty, Meredith) (Entered: 10/21/2014)

10/27/2014 47 REPORT of Rule 26(f) Planning Meeting. (Holcomb, John) (Entered:10/27/2014)

11/05/2014 48 ELECTRONIC Clerk's Notes for proceedings held before Judge Nathaniel M.Gorton: Scheduling Conference held on 11/5/2014. Court hears arguments

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from counsel re 38 Motion to Dismiss. Court takes the matter underadvisement. Automatic discovery to be completed by 11/12/14; Plaintiff toproduce trade secret information by 11/19/14; written discovery to be servedby 5/31/15, answered by 6/30/15, all fact Discovery to be completed by9/30/2015; experts designated and Rule 26 Reports exchanged by 10/31/15,rebuttals by 11/30/15; expert depositions to be completed by 12/31/15;dispositive Motions due by 1/31/2016, oppositions by 2/29/16. Final PretrialConference set for 4/21/2016 03:00 PM in Courtroom 4 before JudgeNathaniel M. Gorton. Jury Trial set for 5/2/2016 09:00 AM in Courtroom 4before Judge Nathaniel M. Gorton. Case to be referred to Mediation Program:October, 2015. (Court Reporter: Debra [email protected].)(Attorneys present: Holcomb, Weeks, Graves, Carsten,Chinitz) (Patch, Christine) (Entered: 11/05/2014)

11/05/2014 49 Judge Nathaniel M. Gorton: ORDER entered. REFERRING CASE toAlternative Dispute Resolution for Mediation: October, 2015.(Patch,Christine) (Entered: 11/05/2014)

11/06/2014 50 Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM ANDORDER: Accordingly, defendants' motion to dismiss (Docket No. 38 ) is, withrespect to plaintiff's claim for correction of inventorship, ALLOWED, but is,with respect to plaintiff's claims for fraud and unfair and deceptive tradepractices, DENIED. So ordered."(Moore, Kellyann) (Entered: 11/06/2014)

11/10/2014 51 Notice of assignment to ADR Provider. Judge Jennifer C. Boalappointed.(Garvin, Brendan) (Entered: 11/10/2014)

11/10/2014 52 CERTIFICATION pursuant to Local Rule 16.1 . (Chinitz, Michael) (Entered:11/10/2014)

11/10/2014 53 ELECTRONIC NOTICE of Hearing. The Alternative Dispute ResolutionHearing is set for 10/2/2015 at 10:00 a.m. in Courtroom 14 before MagistrateJudge Jennifer C. Boal. Counsel and principals are directed to be present andhave full settlement authority. Each party must submit a brief (no more than 5pages) mediation memorandum that includes a discussion of (1) the merits ofthe case (both strengths and weaknesses); (2) damages or other relief soughtby the parties; (3) the status of discovery; and (4) the status of the parties'settlement discussions. The memoranda should be submitted BY HAND,E−MAIL to ([email protected]), OR MAIL WITH THE COURTno later than five (5) business days prior to the mediation and marked"Confidential − Not for Docketing." In the event that any party believes thatthe case is not ripe for mediation, or the date poses a serious conflict, counselare to notify opposing counsel and call the deputy clerk at 617−748−9238 assoon as possible. Prior to the mediation, there will be a Telephone Conferenceset for 9/29/2015 at 11:30 a.m. in Courtroom 14 before Magistrate JudgeJennifer C. Boal. The clerk will provide the call in information to allparties by email, one day prior to the upcoming telephone conference.(York, Steve) (Entered: 11/10/2014)

11/10/2014 54 CERTIFICATION pursuant to Local Rule 16.1 by CardiAQ ValveTechnologies, Inc.. (Holcomb, John) (Entered: 11/10/2014)

11/12/2014 55 Transcript of Motion Hearing/Scheduling Conference held on November 5,2014, before Judge Nathaniel M. Gorton. The Transcript may be purchased

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through the Court Reporter, viewed at the public terminal, or viewed throughPACER after it is released. Court Reporter Name and Contact Information:Debra Lajoie [email protected]. Redaction Request due 12/3/2014.Redacted Transcript Deadline set for 12/15/2014. Release of TranscriptRestriction set for 2/10/2015. (Scalfani, Deborah) Modified on 3/4/2015(Scalfani, Deborah). (Entered: 11/12/2014)

11/12/2014 56 NOTICE is hereby given that an official transcript of a proceeding has beenfiled by the court reporter in the above−captioned matter. Counsel are referredto the Court's Transcript Redaction Policy, available on the court website athttp://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah)(Entered: 11/12/2014)

11/19/2014 57 CERTIFICATE OF SERVICE pursuant to LR 5.2 by CardiAQ ValveTechnologies, Inc. Service of Disclosure of Trade Secrets of Plaintiff CardiAQValve Technologies, Inc.. (Holcomb, John) (Entered: 11/19/2014)

11/20/2014 58 ANSWER to 24 Amended Complaint by Neovasc Inc., Neovasc TiaraInc..(Chinitz, Michael) (Entered: 11/20/2014)

11/20/2014 59 NOTICE of Withdrawal of Appearance by Michael L. Chinitz (Chinitz,Michael) (Entered: 11/20/2014)

12/08/2014 60 Assented to MOTION for Leave to Appear Pro Hac Vice for admission ofElham Firouzi Steiner, Esq. Filing fee: $ 100, receipt number 0101−5312412by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Affidavit Certificationof Elham Firouzi Steiner, Esq.)(Chinitz, Michael) (Entered: 12/08/2014)

12/09/2014 61 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 60Motion for Leave to Appear Pro Hac Vice Added Elham Firouzi Steiner.Attorneys admitted Pro Hac Vice must register for electronic filing if theattorney does not already have an ECF account in this district. To registergo to the Court website at www.mad.uscourts.gov. Select CaseInformation, then Electronic Filing (CM/ECF) and go to the CM/ECFRegistration Form. (Patch, Christine) (Entered: 12/09/2014)

01/14/2015 62 STIPULATION Stipulation for Order Granting Leave for Plaintiff to FileSecond Amended Complaint by CardiAQ Valve Technologies, Inc.. (Holcomb,John) (Entered: 01/14/2015)

01/15/2015 63 Judge Nathaniel M. Gorton: ORDER entered. STIPULATION AND ORDERGranting Leave for Plaintiff to File Second Amended Complaint. (Patch,Christine) (Entered: 01/15/2015)

01/15/2015 64 AMENDED COMPLAINT Second Amended Complaint and Jury Demandagainst Neovasc Tiara Inc., Neovasc Inc., filed by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C,# 4 Exhibit D, # 5 Exhibit E)(Holcomb, John) (Entered: 01/15/2015)

01/29/2015 65 ANSWER to 64 Amended Complaint, by Neovasc Inc., Neovasc TiaraInc..(Graves, Charles) (Entered: 01/29/2015)

02/06/2015 66 MOTION to Seal Memorandum in Support of Defendants' Motion to CompelDiscovery and All Supporting Documents by Neovasc Inc., Neovasc TiaraInc.. (Attachments: # 1 Memorandum in Support of Defendants' Motion toCompel Discovery, # 2 Declaration of Peter Kang in Support of Defendants'

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http://www.mad.uscourts.gov/attorneys/general-info.htm





















Motion to Compel, # 3 Exhibit 2A, # 4 Exhibit 2B, # 5 Exhibit 2C, # 6 Exhibit2D, # 7 Exhibit 2E, # 8 Exhibit 2F, # 9 Exhibit 2G, # 10 Exhibit 2H, # 11Exhibit 2I, # 12 Exhibit 2J, # 13 Exhibit 2K, # 14 Exhibit 2L, # 15 Exhibit 2M,# 16 Exhibit 2N, # 17 Exhibit 2O, # 18 Exhibit 2P, # 19 Exhibit 2Q, # 20Exhibit 2R, # 21 Exhibit 2S, # 22 Exhibit 2T)(Kang, Peter) (Entered:02/06/2015)

02/06/2015 67 MOTION to Compel Discovery by Neovasc Inc., Neovasc Tiara Inc..(Kang,Peter) (Entered: 02/06/2015)

02/06/2015 68 MEMORANDUM in Support re 67 MOTION to Compel Discovery filed byNeovasc Inc., Neovasc Tiara Inc.. (Kang, Peter) (Entered: 02/06/2015)

02/06/2015 69 AFFIDAVIT in Support re 67 MOTION to Compel Discovery . (Attachments:# 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, #16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 ExhibitT)(Kang, Peter) (Entered: 02/06/2015)

02/11/2015 70 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. REFERRINGCASE to Magistrate Judge Marianne B. Bowler Referred for: Events Only (e).Motions referred: 66 MOTION to Seal Memorandum in Support ofDefendants' Motion to Compel Discovery and All Supporting Documents, 67MOTION to Compel Discovery. (Patch, Christine) Motions referred toMarianne B. Bowler. (Entered: 02/11/2015)

02/13/2015 71 ELECTRONIC NOTICE of Reassignment. Judge Allison D. Burroughsadded. Judge Nathaniel M. Gorton no longer assigned to case. (Abaid,Kimberly) (Entered: 02/13/2015)

02/19/2015 72 Opposition re 66 MOTION to Seal Memorandum in Support of Defendants'Motion to Compel Discovery and All Supporting Documents (Statement ofNon−Opposition) filed by CardiAQ Valve Technologies, Inc.. (Holcomb,John) (Entered: 02/19/2015)

02/19/2015 73 Opposition re 67 MOTION to Compel Discovery filed by CardiAQ ValveTechnologies, Inc.. (Holcomb, John) (Entered: 02/19/2015)

02/19/2015 74 AFFIDAVIT in Opposition re 67 MOTION to Compel Discovery(Declaration of John W. Holcomb) filed by CardiAQ Valve Technologies,Inc.. (Attachments: # 1 Exhibit 1)(Holcomb, John) (Entered: 02/19/2015)

02/19/2015 75 MEMORANDUM in Opposition re 67 MOTION to Compel Discovery filedby CardiAQ Valve Technologies, Inc.. (Holcomb, John) (Entered: 02/19/2015)

02/25/2015 76 ELECTRONIC NOTICE Setting Hearing on Motion 67 MOTION to CompelDiscovery : Motion Hearing set for 3/2/2015 02:30 PM in Courtroom 25before Magistrate Judge Marianne B. Bowler. (Garvin, Brendan) (Entered:02/25/2015)

02/25/2015 77 MOTION to Seal Exhibits in Support of Defendants' [Proposed] Reply toPlaintiff's Opposition to Neovasc's Motion to Compel by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Exhibit U, # 2 Exhibit V)(Kang, Peter)(Entered: 02/25/2015)

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02/25/2015 78 MOTION for Leave to File Reply Memorandum to Plaintiff's Opposition toNeovasc's Motion to Compel by Neovasc Inc., Neovasc Tiara Inc..(Kang,Peter) (Entered: 02/25/2015)

02/25/2015 79 MEMORANDUM in Support re 78 MOTION for Leave to File ReplyMemorandum to Plaintiff's Opposition to Neovasc's Motion to Compel filed byNeovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 [Proposed] Reply toPlaintiff's Opposition to Neovasc's Motion to Compel, # 2 [Proposed]Declaration of Peter S. Kang in Support of Defendants' [Proposed] Reply toPlaintiff's Opposition, # 3 Exhibit 2U, # 4 Exhibit 2V, # 5 Exhibit 2W)(Kang,Peter) (Entered: 02/25/2015)

02/26/2015 80 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 77Motion to Seal. (Folan, Karen) (Entered: 02/26/2015)

02/26/2015 81 Opposition re 78 MOTION for Leave to File Reply Memorandum to Plaintiff'sOpposition to Neovasc's Motion to Compel filed by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Appendix A)(Holcomb, John) (Entered:02/26/2015)

02/26/2015 82 Magistrate Judge Marianne B. Bowler: ELECTRONIC ORDER enteredgranting 66 Motion to Seal (Garvin, Brendan) (Entered: 02/26/2015)

02/27/2015 Magistrate Judge Marianne B. Bowler: ELECTRONIC ORDER enteredgranting 78 Motion for Leave to File Document ; Counsel using the ElectronicCase Filing System should now file the document for which leave to file hasbeen granted in accordance with the CM/ECF Administrative Procedures.Counsel must include − Leave to file granted on (date of order)− in the captionof the document. Plaintiff will be given the opportunity at oral argument on themotion to address the issues raised in the reply memorandum. (Bowler,Marianne) (Entered: 02/27/2015)

02/27/2015 83 REPLY to Response to 67 MOTION to Compel Discovery filed by NeovascInc., Neovasc Tiara Inc.. (Kang, Peter) (Entered: 02/27/2015)

02/27/2015 84 AFFIDAVIT in Support re 67 MOTION to Compel Discovery filed byNeovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Exhibit U, # 2 Exhibit V,# 3 Exhibit W)(Kang, Peter) (Entered: 02/27/2015)

03/02/2015 85 ELECTRONIC Clerk's Notes for proceedings held before Magistrate JudgeMarianne B. Bowler: Motion Hearing held on 3/2/2015 re 67 MOTION toCompel Discovery filed by Neovasc Tiara Inc., Neovasc Inc. Court hearsargument on the motion, motion is allowed in part and denied in part as statedon the record in open court. (Court Reporter: Digital Recording − Fortranscripts or CDs contact Deborah Scalfani by email [email protected].)(Attorneys present: Holcomb, Spanga,Weeks, Graves, Kang, Doty) (Garvin, Brendan) (Entered: 03/04/2015)

03/02/2015 86 Magistrate Judge Marianne B. Bowler: ELECTRONIC ORDER enteredgranting in part and denying in part 67 Motion to Compel (Garvin, Brendan)(Entered: 03/04/2015)

03/04/2015 87 Transcript of Motion Hearing held on March 2, 2015, before Magistrate JudgeMarianne B. Bowler. The Transcript may be purchased through Judy BondGonsalves at 508−984−7003, viewed at the public terminal, or viewed through

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PACER after it is released. Court Reporter Name: No Reporter Used. DigitalRecording transcribed by Judy Bond Gonsalves. Redaction Request due3/25/2015. Redacted Transcript Deadline set for 4/6/2015. Release ofTranscript Restriction set for 6/2/2015. (Scalfani, Deborah) (Entered:03/04/2015)


03/06/2015 89 MOTION for Leave to Appear Pro Hac Vice for admission of Mark A.Speegle Filing fee: $ 100, receipt number 0101−5443588 by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Exhibit A)(Weeks, Randall) (Entered:03/06/2015)

03/09/2015 90 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 89Motion for Leave to Appear Pro Hac Vice Added Mark A. Speegle. Attorneysadmitted Pro Hac Vice must register for electronic filing if the attorneydoes not already have an ECF account in this district. To register go tothe Court website at www.mad.uscourts.gov. Select Case Information,then Electronic Filing (CM/ECF) and go to the CM/ECF RegistrationForm. Pursuant to Local Rule 83.5.3, local counsel shall also file anappearance in this matter. Further, local counsel shall review all filings andshall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Folan, Karen) (Entered:03/09/2015)

03/11/2015 91 Proposed Document(s) submitted by Neovasc Inc., Neovasc Tiara Inc..Document received: [Proposed] Protective Order (Submitted by CardiAQValve Technologies, Inc., Neovasc Inc. and Neovasc Tiara Inc.). (Kang, Peter)(Entered: 03/11/2015)

03/16/2015 92 Judge Allison D. Burroughs: PROTECTIVE ORDER entered. "The parties'Proposed Protective Order (Docket No. 91) is APPROVED. However, giventhe lack of specificity in Paragraph 29, the Court reserves the right to allow,after notice to the parties, the disclosure of any document or informationcovered by this Protective Order or to modify this Protective Order at any timein the interests of justice and to ensure that any proceeding before this Court isfair, efficient, and consistent with the public interest." (Folan, Karen) (Entered:03/17/2015)

04/02/2015 93 MOTION to Compel Discovery by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Text of Proposed Order [Proposed] Order)(Sganga, John)(Entered: 04/02/2015)

04/02/2015 94 DECLARATION re 93 MOTION to Compel Discovery (Declaration of MarkA. Speegle) by CardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit 1(Filed Under Seal), # 2 Exhibit 2)(Speegle, Mark) (Entered: 04/02/2015)

04/02/2015 95 MOTION Impound and Seal Portions of the Memorandum in Support ofMotion to Compel and Exhibit 1 by CardiAQ Valve Technologies, Inc..(Attachments: # 1 [Redacted] Memorandum in Support of Motion to Compel,# 2 [Redacted] Exhibit 1 to Declaration of M. Speegle in Support of Motion to

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Compel)(Sganga, John) (Entered: 04/02/2015)

04/02/2015 96 NOTICE OF MANUAL FILING by CardiAQ Valve Technologies, Inc. re 95MOTION Impound and Seal Portions of the Memorandum in Support ofMotion to Compel and Exhibit 1 (Sganga, John) (Entered: 04/02/2015)

04/06/2015 97 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 95Motion to seal and impound memorandum and exhibits in support of motion tocompel discovery (Folan, Karen) (Entered: 04/06/2015)

04/13/2015 100 STIPULATION and Joint Motion for Order Extending the Time forDefendants to Respond to Plaintiff's Motion to Compel and Amending theScheduling Order by Neovasc Inc., Neovasc Tiara Inc.. (Doty, Meredith)(Entered: 04/13/2015)

04/14/2015 101 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. The parties'Joint Motion [Docket No. 100] is ALLOWED. The deadline for Defendants torespond to Plaintiffs' Motion to Compel is hereby extended to 4/30/2015. Thedeadline for service of written discovery is extended to 6/14/2015. Thedeadline for answering written discovery is extended to 7/14/2015. (Folan,Karen) (Entered: 04/14/2015)

04/30/2015 102 MOTION to Seal and Impound Portions of Defendants Neovasc Inc.'s andNeovasc Tiara Inc.'s Opposition to Plaintiff CardiAQ Valve Technologies,Inc.'s Motion to Compel Discovery by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Exhibit Neovasc Inc.'s and Neovasc Tiara Inc.'s Oppositionto Plaintiff CardiAQ Valve Technologies, Inc. Motion to CompelDiscovery)(Kang, Peter) (Entered: 04/30/2015)

04/30/2015 103 Opposition re 93 MOTION to Compel Discovery filed by Neovasc Inc.,Neovasc Tiara Inc.. (Kang, Peter) (Entered: 04/30/2015)

04/30/2015 104 DECLARATION re 103 Opposition to Motion to Compel by Neovasc Inc.,Neovasc Tiara Inc.. (Kang, Peter) (Entered: 04/30/2015)


05/07/2015 107 Assented to MOTION to Seal and Impound Portions of Defendants NeovascInc.'s and Neovasc Tiara Inc.'s Memorandum in Support of Its Motion toDisqualify Plaintiff's Counsel and Supporting Exhibit by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Defendants Neovasc Inc.'s and NeovascTiara Inc.'s Memorandum in Support of the Motion to Disqualify Plaintiff'sCounsel, # 2 Exhibit M to the Declaration of Douglas H. Carsten in Support ofDefendant Neovasc Inc. and Neovasc Tiara Inc.'s Motion to DisqualifyPlaintiff's Counsel)(Kang, Peter) (Entered: 05/07/2015)

05/07/2015 108 MOTION to Disqualify Counsel by Neovasc Inc., Neovasc Tiara Inc..(Kang,Peter) (Entered: 05/07/2015)

05/07/2015 109 MEMORANDUM in Support re 108 MOTION to Disqualify Counsel filed byNeovasc Inc., Neovasc Tiara Inc.. (Kang, Peter) (Entered: 05/07/2015)

05/07/2015 110 DECLARATION re 108 MOTION to Disqualify Counsel by Neovasc Inc.,Neovasc Tiara Inc.. (Kang, Peter) (Entered: 05/07/2015)

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05/07/2015 111 DECLARATION re 108 MOTION to Disqualify Counsel (Declaration ofDouglas H. Carsten) by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1Exhibit A, # 2 Exhibit B1, # 3 Exhibit B2, # 4 Exhibit B3, # 5 Exhibit C, # 6Exhibit C1, # 7 Exhibit C2, # 8 Exhibit C3, # 9 Exhibit C4, # 10 Exhibit C5, #11 Exhibit C6, # 12 Exhibit C7, # 13 Exhibit C8, # 14 Exhibit C9, # 15 ExhibitC10, # 16 Exhibit D1, # 17 Exhibit D2, # 18 Exhibit E, # 19 Exhibit F1, # 20Exhibit F2, # 21 Exhibit G, # 22 Exhibit H, # 23 Exhibit I, # 24 Exhibit J, # 25Exhibit K, # 26 Exhibit L Part 1, # 27 Exhibit L Part 2, # 28 Exhibit L Part 3, #29 Exhibit M)(Kang, Peter) (Entered: 05/07/2015)

05/08/2015 112 ELECTRONIC NOTICE Setting Hearing on Motion 93 MOTION to CompelDiscovery : Motion Hearing set for 5/21/2015 10:30 AM in Courtroom 17before Judge Allison D. Burroughs. If parties wish to call in to the hearinginstead of appearing in person, the call in number is 888−363−4734 and theaccess code for the conference will be 6426345. (Folan, Karen) (Entered:05/08/2015)

05/08/2015 113 Assented to MOTION to Seal and Impound Defendant Neovasc Inc.'sMemorandum in Support of Defendant's Motion to Compel and SupportingDocuments by Neovasc Inc.. (Attachments: # 1 Memorandum in Support ofDefendant Neovasc Inc.'s Motion to Compel, # 2 Exhibit B, # 3 ExhibitK)(Kang, Peter) (Entered: 05/08/2015)

05/08/2015 114 MOTION to Compel by Neovasc Inc..(Kang, Peter) (Entered: 05/08/2015)

05/08/2015 115 MEMORANDUM in Support re 114 MOTION to Compel filed by NeovascInc.. (Kang, Peter) (Entered: 05/08/2015)

05/08/2015 116 DECLARATION re 114 MOTION to Compel (Declaration of Peter S. Kang)by Neovasc Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, #4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Kang, Peter) (Entered: 05/08/2015)

05/11/2015 117 ELECTRONIC NOTICE Setting Hearing on Motion 114 MOTION to Compel: Motion Hearing set for 5/21/2015 10:30 AM in Courtroom 17 before JudgeAllison D. Burroughs. Parties are to file any responses to the motion by5/19/15. If parties wish to call in to the hearing instead of appearing in person,the call in number is 888−363−4734 and the access code for the conferencewill be 6426345.(Folan, Karen) (Entered: 05/11/2015)

05/11/2015 118 Assented to MOTION for Leave to Appear Pro Hac Vice for admission ofVeronica Susana Ascarrunz Filing fee: $ 100, receipt number 0101−5551782by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Certification ofVeronica Susana Ascarrunz, Esq. in Support of Motion for Admission Pro HacVice)(Chinitz, Michael) (Entered: 05/11/2015)


05/13/2015 122 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 107Assented−To Motion to Seal and Impound Portions of Defendants NeovascInc.'s and Neovasc Tiara,Inc.'s Memorandum in Support of its Motion toDisqualify Plaintiff's Counsel and Supporting Exhibit. (Montes, Mariliz)(Entered: 05/13/2015)

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05/15/2015 123 NOTICE of Appearance by Gary M Ronan on behalf of Knobbe MartensOlson & Bear LLP (Ronan, Gary) (Entered: 05/15/2015)

05/15/2015 124 Assented to MOTION for Extension of Time to June 11, 2015 to Respond toMotion to Disqualify Plaintiff's Counsel (Docket #108) by CardiAQ ValveTechnologies, Inc., Knobbe Martens Olson & Bear LLP.(Ronan, Gary)(Entered: 05/15/2015)

05/15/2015 125 NOTICE of Appearance by Richard M. Zielinski on behalf of Knobbe MartensOlson & Bear LLP (Zielinski, Richard) (Entered: 05/15/2015)

05/18/2015 126 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 124Motion for Extension of Time to 6/11/15 to respond to motion to disqualifyplaintiff's counsel. (Folan, Karen) (Entered: 05/18/2015)

05/19/2015 127 Opposition re 114 MOTION to Compel Discovery filed by CardiAQ ValveTechnologies, Inc.. (Sganga, John) (Entered: 05/19/2015)

05/19/2015 128 MEMORANDUM in Opposition re 114 MOTION to Compel Discovery filedby CardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit 1, # 2Exhibit 2, # 3 Exhibit 3)(Sganga, John) (Entered: 05/19/2015)

05/20/2015 129 ELECTRONIC NOTICE Resetting Hearing on Motion 114 MOTION toCompel , 93 MOTION to Compel Discovery : Motion Hearing set for5/21/2015 10:30 AM in Courtroom 18 before Judge Allison D. Burroughs.NOTICE IS FOR COURTROOM LOCATION CHANGE ONLY. (Folan,Karen) (Entered: 05/20/2015)

05/21/2015 130 ELECTRONIC Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Motion Hearing held on 5/21/2015 re 93 MOTION to CompelDiscovery filed by CardiAQ Valve Technologies, Inc., 114 MOTION toCompel filed by Neovasc Inc. Parties to submit proposed order regardingplaintiff's motion to compel by 3:00 p.m. on 5/26/15. Court grants 114 Motionto compel. (Court Reporter: Carol Scott at [email protected].)(Attorneyspresent: Sganga, Ronan, Graves, Carsten, Kang, Doty) (Folan, Karen)(Entered: 05/21/2015)

05/21/2015 131 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. On 5/21/2015,the Court held a hearing on the parties cross−motions to compel discovery. Forthe reasons stated on the record at the hearing, Plaintiffs Motion to Compelwill be allowed. The parties may jointly file a Proposed Order with the Courtno later than 3pm EST on Tuesday, May 26th. If the parties cannot agree onproposed language, the Court will issue its own order. The Defendants Motionto Compel [ECF No. 114] is also ALLOWED. Plaintiff is ORDERED tosupplement its response to Defendants Interrogatory No. 16, in accordancewith the guidance provided by the Court at the hearing. (Folan, Karen)(Entered: 05/21/2015)

05/26/2015 132 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 118Motion for Leave to Appear Pro Hac Vice Added Veronica Ascarrunz.Attorneys admitted Pro Hac Vice must register for electronic filing if theattorney does not already have an ECF account in this district. To registergo to the Court website at www.mad.uscourts.gov. Select CaseInformation, then Electronic Filing (CM/ECF) and go to the CM/ECFRegistration Form. Pursuant to Local Rule 83.5.3, local counsel shall also

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file an appearance in this matter. Further, local counsel shall review all filingsand shall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Folan, Karen) (Entered:05/26/2015)

05/26/2015 133 NOTICE by CardiAQ Valve Technologies, Inc. re 131 Order on Motion toCompel,,,,, (Joint Submission of [Proposed] Order Granting In−Part Motionof Plaintiff CardiAQ Valve Technologies, Inc. to Compel Discovery)(Attachments: # 1 Text of Proposed Order)(Sganga, John) (Entered:05/26/2015)

05/26/2015 134 MOTION for Leave to Appear Pro Hac Vice for admission of Christy G. LeaFiling fee: $ 100, receipt number 0101−5572721 by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Exhibit A)(Weeks, Randall) (Entered:05/26/2015)

05/27/2015 135 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 134Motion for Leave to Appear Pro Hac Vice Added Christy Lea. Attorneysadmitted Pro Hac Vice must register for electronic filing if the attorneydoes not already have an ECF account in this district. To register go tothe Court website at www.mad.uscourts.gov. Select Case Information,then Electronic Filing (CM/ECF) and go to the CM/ECF RegistrationForm. Pursuant to Local Rule 83.5.3, local counsel shall also file anappearance in this matter. Further, local counsel shall review all filings andshall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Folan, Karen) (Entered:05/27/2015)

05/27/2015 136 Judge Allison D. Burroughs: ORDER entered. re 93 MOTION to CompelDiscovery filed by CardiAQ Valve Technologies, Inc. (Folan, Karen)(Entered: 05/27/2015)

05/29/2015 137 Transcript of Motion Hearing held on May 21, 2015, before Judge Allison D.Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Carol Scott [email protected] Redaction Request due 6/19/2015. RedactedTranscript Deadline set for 6/29/2015. Release of Transcript Restriction set for8/27/2015. (Scalfani, Deborah) (Entered: 05/29/2015)


06/03/2015 139 Assented to MOTION for Leave to Appear Pro Hac Vice for admission ofCorina I. Cacovean Filing fee: $ 100, receipt number 0101−5587554 byNeovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Certification of Corina I.Cacovean, Esq. in Support of Motion for Admission Pro Hac Vice)(Chinitz,Michael) (Entered: 06/03/2015)

06/11/2015 142 Opposition re 108 MOTION to Disqualify Counsel filed by Knobbe MartensOlson & Bear LLP. (Ronan, Gary) (Entered: 06/11/2015)

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06/11/2015 143 AFFIDAVIT of Karoline A. Delaney, Esq. in Opposition re 108 MOTION toDisqualify Counsel filed by Knobbe Martens Olson & Bear LLP.(Attachments: # 1 Exhibit Exhibit 4, # 2 Exhibit Exhibit 5, # 3 Exhibit Exhibit6, # 4 Exhibit Exhibit 7)(Ronan, Gary) (Entered: 06/11/2015)

06/11/2015 144 AFFIDAVIT of John B. Sganga, Jr. in Opposition re 108 MOTION toDisqualify Counsel filed by Knobbe Martens Olson & Bear LLP.(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 8, # 5Exhibit 9, # 6 Exhibit 10, # 7 Exhibit 11)(Ronan, Gary) (Entered: 06/11/2015)

06/11/2015 145 AFFIDAVIT of Wendy K. Peterson, Esq. in Opposition re 108 MOTION toDisqualify Counsel filed by Knobbe Martens Olson & Bear LLP. (Ronan,Gary) (Entered: 06/11/2015)

06/11/2015 146 AFFIDAVIT of Professor David C. Hricik in Opposition re 108 MOTION toDisqualify Counsel filed by Knobbe Martens Olson & Bear LLP.(Attachments: # 1 Exhibit A)(Ronan, Gary) (Entered: 06/11/2015)

06/11/2015 147 Opposition re 108 MOTION to Disqualify Counsel filed by CardiAQ ValveTechnologies, Inc.. (Sganga, John) (Entered: 06/11/2015)

06/12/2015 148 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 139Motion for Leave to Appear Pro Hac Vice Added Corina Cacovean.Attorneys admitted Pro Hac Vice must register for electronic filing if theattorney does not already have an ECF account in this district. To registergo to the Court website at www.mad.uscourts.gov. Select CaseInformation, then Electronic Filing (CM/ECF) and go to the CM/ECFRegistration Form. Pursuant to Local Rule 83.5.3, local counsel shall alsofile an appearance in this matter. Further, local counsel shall review all filingsand shall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Folan, Karen) (Entered:06/12/2015)

06/19/2015 149 STIPULATION and Joint Motion for Order Allowing Further Briefing onDefendants' Motion to Disqualify by Neovasc Inc., Neovasc Tiara Inc.. (Doty,Meredith) (Entered: 06/19/2015)

06/22/2015 150 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. The JointMotion for Order Allowing Further Briefing 149 is ALLOWED IN PART.The parties may file a reply and surreply by the dates proposed in the jointmotion. Each of the reply and surreply shall not exceed ten (10) pages. (Replies due by 7/2/2015; Sur−replies due by 7/24/2015.)(Montes, Mariliz)(Entered: 06/22/2015)

06/22/2015 152 ELECTRONIC NOTICE of Hearing : Hearing on Request for In Camera ExParte Review of Non−Party Customer Objection set for 7/1/2015 10:30 AM inCourtroom 17 before Judge Allison D. Burroughs. Third party objector(s) neednot attend the hearing on this motion. The parties are welcome to participateby telephone if desired. Contact Courtroom Clerk for call in information ifparticipating by telephone.(Folan, Karen) (Entered: 06/22/2015)

06/24/2015 153 Assented to MOTION to Seal and Impound Portions of Opposition toDefendants' Motion to Seal and Impound and Request for In Camera Ex ParteReview of NonParty Customer Objection and Supporting Declaration byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit [Proposed]

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Redacted Opposition)(Lea, Christy) (Entered: 06/24/2015)


06/25/2015 155 NOTICE OF MANUAL FILING by CardiAQ Valve Technologies, Inc. re 154Order on Motion to Seal Opposition to Defendants' Motion to Seal andImpound and Request for In Camera Ex Parte Review of Nonparty CustomerObjection, Supporting Declaration, and Exhibits A−B (Lea, Christy) (Entered:06/25/2015)

07/01/2015 157 ELECTRONIC Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Hearing re Request for In Camera Ex Parte Review of Non−PartyCustomer Objection held on 7/1/2015. Colloquy re: redactions. (CourtReporter: Carol Scott at [email protected].)(Attorneys present: Lea,Speegle, Weeks, Ascarrunz, Doty, Oettinger) (Folan, Karen) (Entered:07/01/2015)

07/02/2015 158 Assented to MOTION to Seal and Impound Portions of Opposition toNonParty Customer In Camera Objection by CardiAQ Valve Technologies,Inc.. (Attachments: # 1 Exhibit [Proposed] Redacted Opposition)(Lea, Christy)(Entered: 07/02/2015)

07/02/2015 159 MOTION to Seal and Impound and for In Camera Ex Parte Review ofMaterials Submitted in Support of Defendants Neovasc Inc.'s and NeovascTiara Inc.'s Reply in Support of its Motion to Disqualify Plaintiff's Counsel(Unopposed) by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 ExhibitA1 to the Declaration of Veronica S. Ascarrunz, # 2 Exhibit A2 to theDeclaration of Veronica S. Ascarrunz, # 3 Exhibit A3 to the Declaration ofVeronica S. Ascarrunz, # 4 Exhibit A4 to the Declaration of Veronica S.Ascarrunz, # 5 Exhibit A5 to the Declaration of Veronica S. Ascarrunz, # 6Exhibit A6 to the Declaration of Veronica S. Ascarrunz, # 7 Exhibit A7 to theDeclaration of Veronica S. Ascarrunz, # 8 Exhibit A9 to the Declaration ofVeronica S. Ascarrunz, # 9 Exhibit A10 to the Declaration of Veronica S.Ascarrunz, # 10 Exhibit B: Reply Declaration of Mark L. Tuft in Support ofMotion of Defendants Neovasc Inc. and Neovasc Tiara Inc. to DisqualifyPlaintiff's Counsel, # 11 Exhibit C: Declaration of Michael Schneider inSupport of Defendants Neovasc Inc. and Neovasc Tiara Inc.'s Reply inSupport of Motion to Disqualify Plaintiff's Counsel, # 12 Exhibit D:Defendants Neovasc Inc.'s and Neovasc Tiara Inc.'s Reply in Support of itsMotion to Disqualify Plaintiff's Counsel)(Ascarrunz, Veronica) (Entered:07/02/2015)

07/02/2015 160 REPLY to Response to 108 MOTION to Disqualify Counsel filed by NeovascInc., Neovasc Tiara Inc.. (Ascarrunz, Veronica) (Entered: 07/02/2015)

07/02/2015 161 DECLARATION re 160 Reply to Response to Motion to Disqualify Counsel(Declaration of Veronica S. Ascarrunz) by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10Exhibit 10)(Ascarrunz, Veronica) (Entered: 07/02/2015)

07/02/2015 162 DECLARATION re 160 Reply to Response to Motion to Disqualify Counsel(Declaration of Mark L. Tuft) by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Exhibit A)(Ascarrunz, Veronica) (Entered: 07/02/2015)

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07/02/2015 163 DECLARATION re 160 Reply to Response to Motion to Disqualify Counsel(Declaration of Cameron K. Weiffenbach) by Neovasc Inc., Neovasc TiaraInc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, #5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Ascarrunz, Veronica)(Entered: 07/02/2015)

07/02/2015 164 NOTICE OF MANUAL FILING by Neovasc Inc., Neovasc Tiara Inc. re 159MOTION to Seal and Impound and for In Camera Ex Parte Review ofMaterials Submitted in Support of Defendants Neovasc Inc.'s and NeovascTiara Inc.'s Reply in Support of its Motion to Disqualify Plaintiff's Counsel(Unopposed) (Ascarrunz, Veronica) (Entered: 07/02/2015)


07/06/2015 166 NOTICE OF MANUAL FILING by CardiAQ Valve Technologies, Inc. re 165Order on Motion to Seal Opposition to NonParty Customer Objection andExhibits A−B (Lea, Christy) (Entered: 07/06/2015)

07/07/2015 168 MOTION to Seal and Impound Portions of Memorandum in Support ofMotion to Compel by CardiAQ Valve Technologies, Inc.. (Attachments: # 1Exhibit [Proposed] Redacted Memo in Support of Motion to Compel, # 2Exhibit [Proposed] Redacted Exhibits K, L, M, N to Declaration of M. Speeglein Support of Motion to Compel)(Lea, Christy) (Entered: 07/07/2015)

07/08/2015 169 NOTICE of Appearance by Bernard A. Flanagan on behalf of Neovasc Inc.,Neovasc Tiara Inc. (Flanagan, Bernard) (Entered: 07/08/2015)

07/09/2015 170 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 168Motion to Seal (Montes, Mariliz) (Entered: 07/09/2015)

07/09/2015 171 Judge Allison D. Burroughs: ORDER OF IMPOUNDMENT entered. re 170Order on Motion to Seal (Montes, Mariliz) (Entered: 07/09/2015)

07/09/2015 172 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 159Motion to Seal (Folan, Karen) (Entered: 07/09/2015)

07/09/2015 173 NOTICE OF MANUAL FILING by CardiAQ Valve Technologies, Inc. re 170Order on Motion to Seal Portions of Memorandum In Support of Motion ofPlaintiff CardiAQ Valve Technologies, Inc. to Compel Defendants NeovascInc. and Neovasc Tiara Inc. to Produce Unredacted Laboratory Notebooksand Exhibits K, L, M, and N (Lea, Christy) (Entered: 07/09/2015)

07/09/2015 174 MOTION to Compel Defendants to Produce Unredacted LaboratoryNotebooks by CardiAQ Valve Technologies, Inc.. (Attachments: # 1 Text ofProposed Order [Proposed] Order)(Lea, Christy) (Entered: 07/09/2015)

07/09/2015 175 DECLARATION re 174 MOTION to Compel Defendants to ProduceUnredacted Laboratory Notebooks (Declaration of Mark A. Speegle) byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit A, # 2 ExhibitB, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K (Filed Under Seal), #12 Exhibit L (Filed Under Seal), # 13 Exhibit M (Filed Under Seal), # 14Exhibit N (Filed Under Seal))(Lea, Christy) (Entered: 07/09/2015)

07/10/2015 181

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Unopposed Motion to Seal and Impound and For In Camera Ex Parte Reviewof Materials Submitted in Support of Defendants Neovasc, Inc.'s and NeovasTiara Inc.'s 160 Reply in Support of its Motion to Disqualify Plaintiff'sCounsel by Neovasc Inc., Neovasc Tiara Inc..(Montes, Mariliz) (Entered:07/13/2015)

07/14/2015 185 Transcript of Hearing held on July 1, 2015, before Judge Allison D.Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Carol Scott [email protected] Redaction Request due 8/4/2015. Redacted TranscriptDeadline set for 8/14/2015. Release of Transcript Restriction set for10/12/2015. (Scalfani, Deborah) (Entered: 07/14/2015)


07/23/2015 187 Assented to MOTION to Seal Portions of Defendants Neovasc Inc.s andNeovasc Tiara Inc.s Opposition to Motion of Plaintiff CardiAQ ValveTechnologies, Inc. to Compel Defendants Neovasc Inc. and Neovasc Tiara Inc.to Produce Unredacted Laboratory Notebooks by Neovasc Inc., NeovascTiara Inc..(Ascarrunz, Veronica) (Main Document 187 replaced on 7/29/2015)(Montes, Mariliz). (Additional attachment(s) added on 7/29/2015: # 1 Text ofProposed Order) (Montes, Mariliz). (Entered: 07/23/2015)

07/23/2015 188 MEMORANDUM in Opposition re 174 MOTION to Compel Defendants toProduce Unredacted Laboratory Notebooks filed by Neovasc Inc., NeovascTiara Inc.. (Ascarrunz, Veronica) (Entered: 07/23/2015)

07/23/2015 189 DECLARATION re 188 Memorandum in Opposition to Motion (Declarationof Randy Lane, Filed Under Seal)) by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Ascarrunz, Veronica) (Entered:07/23/2015)

07/23/2015 190 DECLARATION re 188 Memorandum in Opposition to Motion (Declarationof Veronica Ascarrunz, Exhibits 2 and 3 Filed Under Seal)) by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, #4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9Exhibit 9)(Ascarrunz, Veronica) (Entered: 07/23/2015)

07/24/2015 191 SUR−REPLY to Motion re 108 MOTION to Disqualify Counsel (Redacted)filed by Knobbe Martens Olson & Bear LLP. (Ronan, Gary) (Entered:07/24/2015)

07/24/2015 192 Assented to MOTION to Seal Document (Unredacted Surreply) by KnobbeMartens Olson & Bear LLP. (Attachments: # 1 Exhibit RedactedSurreply)(Ronan, Gary) (Entered: 07/24/2015)

07/27/2015 193 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 181Motion to seal. (Folan, Karen) (Entered: 07/27/2015)

07/27/2015 194

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Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 187Motion to Seal; granting 192 Motion to Seal Document. (Folan, Karen)(Entered: 07/27/2015)

07/29/2015 198 Notice of correction to docket made by Court staff. Correction: Docket 187corrected because: by detaching proposed order and re−filing as anattachment. (Montes, Mariliz) (Entered: 07/29/2015)

08/05/2015 200 Assented to MOTION to Seal AND IMPOUND DEFENDANT NEOVASCINC.S MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TOCOMPEL AMENDED RESPONSES TO REQUESTS FOR ADMISSION ANDCERTAIN SUPPORTING DOCUMENTS by Neovasc Inc..(Kang, Peter) (MainDocument 200 replaced on 8/14/2015) (Montes, Mariliz). (Additionalattachment(s) added on 8/14/2015: # 1 Text of Proposed Order) (Montes,Mariliz). (Entered: 08/05/2015)

08/05/2015 201 MOTION for Discovery DEFENDANT NEOVASC INC.S MOTION TOCOMPEL AMENDED RESPONSES TO REQUESTS FOR ADMISSION byNeovasc Inc..(Kang, Peter) (Entered: 08/05/2015)

08/05/2015 202 MEMORANDUM in Support re 201 MOTION for Discovery DEFENDANTNEOVASC INC.S MOTION TO COMPEL AMENDED RESPONSES TOREQUESTS FOR ADMISSION MEMORANDUM IN SUPPORT OFDEFENDANT NEOVASC INC.S MOTION TO COMPEL AMENDEDRESPONSES TO REQUESTS FOR ADMISSION filed by Neovasc Inc.. (Kang,Peter) (Entered: 08/05/2015)

08/05/2015 203 AFFIDAVIT OF PETER S. KANG in Support re 201 MOTION for DiscoveryDEFENDANT NEOVASC INC.S MOTION TO COMPEL AMENDEDRESPONSES TO REQUESTS FOR ADMISSION DECLARATION OF PETERS. KANG IN SUPPORT OF DEFENDANT NEOVASC INC.S MOTION TOCOMPEL AMENDED RESPONSES TO REQUESTS FOR ADMISSION filedby Neovasc Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, #3 Exhibit Exhibit C)(Kang, Peter) Modified on 8/6/2015 (Montes, Mariliz).(Entered: 08/05/2015)

08/05/2015 204 AFFIDAVIT in Support with EXHIBITS D and E re 201 MOTION forDiscovery DEFENDANT NEOVASC INC.S MOTION TO COMPELAMENDED RESPONSES TO REQUESTS FOR ADMISSION DECLARATIONOF PETER S. KANG IN SUPPORT OF DEFENDANT NEOVASC INC.SMOTION TO COMPEL AMENDED RESPONSES TO REQUESTS FORADMISSION filed by Neovasc Inc.. (Attachments: # 1 Exhibit Exhibit D, # 2Exhibit Exhibit E)(Kang, Peter) Modified on 8/6/2015 (Montes, Mariliz).(Entered: 08/05/2015)

08/05/2015 205 EXHIBIT F TO AFFIDAVIT in Support re 201 MOTION for DiscoveryDEFENDANT NEOVASC INC.S MOTION TO COMPEL AMENDEDRESPONSES TO REQUESTS FOR ADMISSION DECLARATION OF PETERS. KANG IN SUPPORT OF DEFENDANT NEOVASC INC.S MOTION TOCOMPEL AMENDED RESPONSES TO REQUESTS FOR ADMISSION filedby Neovasc Inc.. (Kang, Peter) (Main Document 205 replaced on 8/6/2015)(Montes, Mariliz). Modified on 8/6/2015 to replace exhibit with a version incolor (Montes, Mariliz). Modified on 8/6/2015 (Montes, Mariliz). (Entered:08/05/2015)

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08/05/2015 206 EXHIBITS G and H TO 203 AFFIDAVIT in Support re 201 MOTION forDiscovery DEFENDANT NEOVASC INC.S MOTION TO COMPELAMENDED RESPONSES TO REQUESTS FOR ADMISSION DECLARATIONOF PETER S. KANG IN SUPPORT OF DEFENDANT NEOVASC INC.SMOTION TO COMPEL AMENDED RESPONSES TO REQUESTS FORADMISSION filed by Neovasc Inc.. (Attachments: # 1 Exhibit ExhibitH)(Kang, Peter) Modified on 8/6/2015 (Montes, Mariliz). (Entered:08/05/2015)

08/05/2015 207 EXHIBITS I and J to 203 AFFIDAVIT IN SUPPORT re 201 MOTION forDiscovery DEFENDANT NEOVASC INC.S MOTION TO COMPELAMENDED RESPONSES TO REQUESTS FOR ADMISSION DECLARATIONOF PETER S. KANG IN SUPPORT OF DEFENDANT NEOVASC INC.SMOTION TO COMPEL AMENDED RESPONSES TO REQUESTS FORADMISSION filed by Neovasc Inc.. (Attachments: # 1 Exhibit ExhibitJ)(Kang, Peter) Modified on 8/6/2015 (Montes, Mariliz). (Entered:08/05/2015)

08/05/2015 208 EXHIBITS O AND P OF 203 AFFIDAVIT in Support re 201 MOTION forDiscovery DEFENDANT NEOVASC INC.S MOTION TO COMPELAMENDED RESPONSES TO REQUESTS FOR ADMISSION DECLARATIONOF PETER S. KANG IN SUPPORT OF DEFENDANT NEOVASC INC.SMOTION TO COMPEL AMENDED RESPONSES TO REQUESTS FORADMISSION filed by Neovasc Inc.. (Attachments: # 1 Exhibit ExhibitP)(Kang, Peter) Modified on 8/6/2015 (Montes, Mariliz). (Entered:08/05/2015)

08/05/2015 209 EXHIBITS Q, R (to be filed under seal), S and T to 203 ( AFFIDAVIT inSupport re 201 MOTION for Discovery DEFENDANT NEOVASC INC.SMOTION TO COMPEL AMENDED RESPONSES TO REQUESTS FORADMISSION DECLARATION OF PETER S. KANG IN SUPPORT OFDEFENDANT NEOVASC INC.S MOTION TO COMPEL AMENDEDRESPONSES TO REQUESTS FOR ADMISSION filed by Neovasc Inc..(Attachments: # 1 Exhibit Exhibit R − SEALED, # 2 Exhibit Exhibit S, # 3Exhibit Exhibit T)(Kang, Peter) Modified on 8/6/2015 (Montes, Mariliz).(Entered: 08/05/2015)

08/05/2015 210 EXHIBITS U (Redacted), V and W to 203 AFFIDAVIT in Support re 201MOTION for Discovery DEFENDANT NEOVASC INC.S MOTION TOCOMPEL AMENDED RESPONSES TO REQUESTS FOR ADMISSIONDECLARATION OF PETER S. KANG IN SUPPORT OF DEFENDANTNEOVASC INC.S MOTION TO COMPEL AMENDED RESPONSES TOREQUESTS FOR ADMISSION filed by Neovasc Inc.. (Attachments: # 1Exhibit Exhibit V, # 2 Exhibit Exhibit W)(Kang, Peter) Modified on 8/6/2015(Montes, Mariliz). (Entered: 08/05/2015)

08/05/2015 211 EXHIBITS X (to be filed under seal), Y, Z, AA, BB, CC TO 203 AFFIDAVITin Support re 201 MOTION for Discovery DEFENDANT NEOVASC INC.SMOTION TO COMPEL AMENDED RESPONSES TO REQUESTS FORADMISSION DECLARATION OF PETER S. KANG IN SUPPORT OFDEFENDANT NEOVASC INC.S MOTION TO COMPEL AMENDEDRESPONSES TO REQUESTS FOR ADMISSION filed by Neovasc Inc..(Attachments: # 1 Exhibit Exhibit Y, # 2 Exhibit Exhibit Z, # 3 Exhibit Exhibit

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AA, # 4 Exhibit Exhibit BB, # 5 Exhibit Exhibit CC)(Kang, Peter) Modifiedon 8/6/2015 (Montes, Mariliz). (Entered: 08/05/2015)

08/05/2015 212 EXHIBITS K, L, M to 203 AFFIDAVIT in Support re 201 MOTION forDiscovery DEFENDANT NEOVASC INC.S MOTION TO COMPELAMENDED RESPONSES TO REQUESTS FOR ADMISSION filed by NeovascInc.. (Attachments: # 1 Ex. L, # 2 Ex. M)(Kang, Peter) Modified on 8/6/2015(Montes, Mariliz). (Entered: 08/05/2015)

08/05/2015 213 EXHIBIT N TO 203 AFFIDAVIT in Support re 201 MOTION for DiscoveryDEFENDANT NEOVASC INC.S MOTION TO COMPEL AMENDEDRESPONSES TO REQUESTS FOR ADMISSION Ex. N filed by Neovasc Inc..(Kang, Peter) Modified on 8/6/2015 (Montes, Mariliz). (Entered: 08/05/2015)

08/05/2015 214 Assented−To MOTION to Seal and Impound Defendants' Memorandum inSupport of Defendants' Motion to Compel Amended Responses to Requestsfor Admission and Certain Supporting Documents. by Neovasc Inc., NeovascTiara Inc.. (Attachments: # 1 Text of Proposed Order)(Montes, Mariliz)(Entered: 08/06/2015)

08/06/2015 215 Notice of correction to docket made by Court staff. Correction: Dockets 203 to213 corrected by editing description of documents and linking it to theappropriate pleading. (Montes, Mariliz) (Entered: 08/06/2015)

08/06/2015 216 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Neovasc Inc. re 203Affidavit in Support of Motion, . (Kang, Peter) (Entered: 08/06/2015)

08/07/2015 217 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 200Motion to Seal; granting 214 Motion to Seal (Montes, Mariliz) (Entered:08/07/2015)

08/10/2015 220 ELECTRONIC NOTICE Setting Hearing on 141 Request for In Camera ExParte Review of Non−Party Customer Objection and 167 Opposition toNonparty Customer Objection 174 MOTION to Compel Defendants toProduce Unredacted Laboratory Notebooks, 108 MOTION to DisqualifyCounsel , 201 MOTION for Discovery DEFENDANT NEOVASC INC.SMOTION TO COMPEL AMENDED RESPONSES TO REQUESTS FORADMISSION : Motion Hearing set for 8/20/2015 10:30 AM in Courtroom 17before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 08/10/2015)

08/14/2015 221 Notice of correction to docket made by Court staff. Correction: Docket 200corrected by detaching proposed order and re−filing it as an attachment.(Montes, Mariliz) (Entered: 08/14/2015)

08/18/2015 223 Opposition re 201 MOTION for Discovery DEFENDANT NEOVASC INC.SMOTION TO COMPEL AMENDED RESPONSES TO REQUESTS FORADMISSION filed by CardiAQ Valve Technologies, Inc.. (Attachments: # 1Exhibit 1)(Sganga, John) (Entered: 08/18/2015)

08/20/2015 224 ELECTRONIC Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Motion Hearing held on 8/20/2015 re 174 MOTION to CompelDefendants to Produce Unredacted Laboratory Notebooks filed by CardiAQValve Technologies, Inc., 201 MOTION for Discovery DEFENDANTNEOVASC INC.S MOTION TO COMPEL AMENDED RESPONSES TOREQUESTS FOR ADMISSION filed by Neovasc Inc., 108 MOTION to

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Disqualify Counsel filed by Neovasc Tiara Inc., Neovasc Inc. Order to issue.(Court Reporter: Carol Scott at [email protected].)(Attorneys present:Sganga, Zielinski, Carsten, Chinitz, Ascarrunz) (Folan, Karen) (Entered:08/20/2015)

08/20/2015 225 Judge Allison D. Burroughs: ORDER entered denying 108 Motion toDisqualify Counsel; granting 174 Motion to Compel; granting 201 Motion forDiscovery. (Folan, Karen) (Entered: 08/20/2015)

08/31/2015 226 Letter/request (non−motion) from Neovasc to Judge Burroughs RequestingTelephonic Conference . (Ascarrunz, Veronica) (Entered: 08/31/2015)

09/01/2015 227 Letter/request (non−motion) from CardiAQ Valve Technologies, Inc. reresponse to D.I. 226. (Sganga, John) (Entered: 09/01/2015)

09/02/2015 228 Transcript of Motion Hearing held on August 20, 2015, before Judge AllisonD. Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Carol Scott [email protected] Redaction Request due 9/23/2015. RedactedTranscript Deadline set for 10/5/2015. Release of Transcript Restriction set for12/1/2015. (Scalfani, Deborah) (Entered: 09/02/2015)


09/02/2015 230 ELECTRONIC NOTICE of Hearing. Telephone Conference set for 9/4/201502:00 PM in Courtroom 17 before Judge Allison D. Burroughs. Parties are tocall 888−363−4734, access code is 6426345.(Folan, Karen) (Entered:09/02/2015)

09/03/2015 231 Letter/request (non−motion) from Neovasc to Judge Burroughs . (Ascarrunz,Veronica) (Entered: 09/03/2015)

09/04/2015 232 CORPORATE DISCLOSURE STATEMENT by CardiAQ ValveTechnologies, Inc. identifying Corporate Parent Edwards LifesciencesCorporation, Other Affiliate Edwards Lifesciences CardiAQ, Inc. for CardiAQValve Technologies, Inc... (Lea, Christy) (Entered: 09/04/2015)

09/04/2015 238 ELECTRONIC Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Telephone Conference held on 9/4/2015. Colloquy re: docket nos.226, 227, and 231. Parties to file motion with MJ Boal's session regardingextension of mediation date. (Court Reporter: Carol Scott [email protected].) (Folan, Karen) (Entered: 09/15/2015)

09/14/2015 233 Assented to MOTION to Extend ADR Hearing by CardiAQ ValveTechnologies, Inc..(Lea, Christy) (Entered: 09/14/2015)

09/14/2015 234 MOTION to Amend 92 Protective Order,, by CardiAQ Valve Technologies,Inc.. (Attachments: # 1 Text of Proposed Order [Proposed] Order)(Lea,Christy) (Entered: 09/14/2015)

09/14/2015 235

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MEMORANDUM in Support re 234 MOTION to Amend 92 ProtectiveOrder,, filed by CardiAQ Valve Technologies, Inc.. (Lea, Christy) (Entered:09/14/2015)

09/14/2015 236 DECLARATION re 234 MOTION to Amend 92 Protective Order,,Declaration of Keith A. Newburry by CardiAQ Valve Technologies, Inc..(Lea, Christy) (Entered: 09/14/2015)

09/14/2015 237 DECLARATION re 234 MOTION to Amend 92 Protective Order,,Declaration of Ryan E. Lindsey by CardiAQ Valve Technologies, Inc.. (Lea,Christy) (Entered: 09/14/2015)

09/15/2015 239 Letter/request (non−motion) from CardiAQ Valve Technologies, Inc. ReRequest for Expedited Briefing Scheduling, Hearing, and Ruling on Motion toAmend the Protective Order (Dkt. Nos. 234−237). (Lea, Christy) (Entered:09/15/2015)

09/16/2015 240 ELECTRONIC NOTICE of Hearing. Telephone Conference set for 9/18/201510:00 AM in Courtroom 17 before Judge Allison D. Burroughs. Neovasc is torespond to Motion to Amend by 9:00 a.m. on Friday, 9/18/15. Parties are tocall in to 888−363−4734, access code is 6426345. (Folan, Karen) (Entered:09/16/2015)

09/16/2015 241 DECLARATION re 234 MOTION to Amend 92 Protective Order,,Declaration of Aimee S. Weisner by CardiAQ Valve Technologies, Inc.. (Lea,Christy) (Entered: 09/16/2015)

09/16/2015 242 Magistrate Judge Jennifer C. Boal: ELECTRONIC ORDER entered granting233 Assented to Motion to Extend ADR Hearing by CardiAQ ValveTechnologies, Inc. (York, Steve) (Entered: 09/16/2015)

09/16/2015 243 ELECTRONIC NOTICE OF RESCHEDULING. The Alternative DisputeResolution Hearing has been rescheduled for 11/6/2015 at 10:00 a.m. inCourtroom 14 before Magistrate Judge Jennifer C. Boal. The TelephoneConference has been reset for 11/3/2015 at 11:30 a.m. in Courtroom 14 beforeMagistrate Judge Jennifer C. Boal. Please review the earlier noticeregarding rules and submissions prior to the mediation. (York, Steve)(Entered: 09/16/2015)

09/17/2015 244 Reset Deadlines as to 234 MOTION to Amend 92 Protective Order .Responses due by 9/18/2015 (Montes, Mariliz) (Entered: 09/17/2015)

09/17/2015 245 ELECTRONIC NOTICE of Hearing. Please note that the TelephoneConference previously set for 9/18/2015 in Courtroom 17 before Judge AllisonD. Burroughs will proceed as scheduled at 10:00 a.m. Parties are to call in to888−363−4734, access code is 6426345. (York, Steve) (Entered: 09/17/2015)

09/17/2015 246 NOTICE of Appearance by Devon H. MacWilliam on behalf of CardiAQValve Technologies, Inc. (MacWilliam, Devon) (Entered: 09/17/2015)

09/17/2015 247 Opposition re 234 MOTION to Amend 92 Protective Order,, filed by NeovascInc., Neovasc Tiara Inc.. (Ascarrunz, Veronica) (Entered: 09/17/2015)

09/17/2015 248 DECLARATION re 247 Opposition to Motion of Plaintiff to Amend theProtective Order by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Ascarrunz, Veronica)

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(Entered: 09/17/2015)

09/18/2015 249 ELECTRONIC Clerk's Notes for proceedings held before Judge Allison D.Burroughs: denying 234 Motion to Amend; Telephone Conference held on9/18/2015; (Court Reporter: Catherine Handel [email protected].)(Attorneys present: Lea, MacWilliam, Carston,Ascarrunz, Flanagan) (Folan, Karen) (Entered: 09/18/2015)

09/18/2015 250 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Neovasc Inc., NeovascTiara Inc. re 247 Opposition to Motion to Amend Protective Order.(Ascarrunz, Veronica) (Entered: 09/18/2015)

10/08/2015 251 Letter/request (non−motion) from CardiAQ Valave Technologies, Inc. rediscovery. (Sganga, John) (Entered: 10/08/2015)

10/09/2015 252 Assented to MOTION to Seal and Impound Defendants Neovasc Inc.'s andNeovasc Tiara Inc.'s Responsive Letter to the Court Opposing ReopeningDiscovery by Neovasc Inc., Neovasc Tiara Inc..(Ascarrunz, Veronica) (MainDocument 252 replaced on 10/13/2015) (Montes, Mariliz). (Additionalattachment(s) added on 10/13/2015: # 1 Text of Proposed Order) (Montes,Mariliz). (Entered: 10/09/2015)

10/09/2015 253 Letter/request (non−motion) from Defendants Neovasc Inc. and Neovasc TiaraInc. to the Court Opposing Reopening Discovery . (Attachments: # 1Attachment 1)(Ascarrunz, Veronica) (Entered: 10/09/2015)

10/12/2015 254 Letter/request (non−motion) from CardiAQ Valve Technologies, Inc. reDiscovery. (Sganga, John) (Entered: 10/12/2015)

10/12/2015 255 Assented to MOTION to Seal Supporting Documents to Letter by CardiAQValve Technologies, Inc.. (Attachments: # 1 Attachments)(Sganga, John)(Main Document 255 replaced on 10/13/2015) (Montes, Mariliz). (Additionalattachment(s) added on 10/13/2015: # 2 Text of Proposed Order) (Montes,Mariliz). (Entered: 10/12/2015)

10/13/2015 256 Notice of correction to docket made by Court staff. Correction: Dockets 252and 255 corrected by detaching proposed orders and re−filing as attachments.(Montes, Mariliz) (Entered: 10/13/2015)

10/15/2015 257 Neovasc's Letter/request (non−motion) from Douglas Carsten re discoverydispute. (Carsten, Douglas) (Entered: 10/15/2015)

10/15/2015 258 ELECTRONIC NOTICE of Hearing. Status Conference set for 10/20/201510:30 AM in Courtroom 17 before Judge Allison D. Burroughs. If counselwould like to appear by telephone the call in information is 888−363−4734,access code 6426345.(Folan, Karen) (Entered: 10/15/2015)

10/15/2015 259 Letter/request (non−motion) from CardiAQ Valve Technologies, Inc. rediscovery disputes. (Sganga, John) (Entered: 10/15/2015)



10/16/2015 262

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ELECTRONIC NOTICE OF RESCHEDULING Status Conference RESETfor 10/21/2015 10:30 AM in Courtroom 17 before Judge Allison D.Burroughs. If counsel would like to appear by telephone the call ininformation is 888−363−4734, access code 6426345.(Folan, Karen) (Entered:10/16/2015)

10/20/2015 264 Transcript of Telephone Conference held on September 4, 2015, before JudgeAllison D. Burroughs. The Transcript may be purchased through the CourtReporter, viewed at the public terminal, or viewed through PACER after it isreleased. Court Reporter Name and Contact Information: Carol Scott [email protected] Redaction Request due 11/10/2015. RedactedTranscript Deadline set for 11/20/2015. Release of Transcript Restriction setfor 1/18/2016. (Scalfani, Deborah) (Entered: 10/20/2015)


10/21/2015 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Status conference held on 10/21/2015 re 251 Letter/request(non−motion) from CardiAQ Valve Technologies, Inc. re discovery, 253Letter/request (non−motion) from Defendants Neovasc Inc. and Neovasc TiaraInc. to the Court Opposing Reopening Discovery, 254 Letter/request(non−motion) from CardiAQ Valve Technologies, Inc. re Discovery, 257Neovasc's Letter/request (non−motion) from Douglas Carsten re discoverydispute, and 259 Letter/request (non−motion) from CardiAQ ValveTechnologies, Inc. re discovery disputes. The discovery issues raised in theletters have been resolved, as directed by the Court during the statusconference. Any additional letters concerning the objecting customer disputeare due by 11/16/15. The Court directs that the depositions of Randy Lane andDr. Arshad Quadri be reopened, with the time allowed for the furtherdeposition of Dr. Quadri to be double the time allowed for the furtherdeposition of Mr. Lane. In addition, the following deadlines have beenextended: experts designated and Rule 26 Reports exchanged by 11/14/15,rebuttals by 12/14/15; expert depositions to be completed by 1/14/16. Theparties should instruct the Court by 1/15/16 as to whether they intend to filedispositive motions. (Status Report due by 1/15/2016) (Montes, Mariliz)(Entered: 10/21/2015)

10/22/2015 267 NOTICE of Appearance by Robert J. Kaler on behalf of CardiAQ ValveTechnologies, Inc. (Kaler, Robert) (Entered: 10/22/2015)

10/26/2015 268 MOTION to Seal Document by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Exhibit [Proposed] Redacted Letter Brief, # 2 Text ofProposed Order)(Sganga, John) (Entered: 10/26/2015)

10/30/2015 269 MOTION to Seal and Impound Defendants Neovasc Inc.'s and Neovasc TiaraInc's Responsive Letter to the Court Opposing Reopening Depositions byNeovasc Inc., Neovasc Tiara Inc..(Ascarrunz, Veronica) (Entered: 10/30/2015)

10/30/2015 270 Letter/request (non−motion) from Defendants Neovasc Inc. and Neovasc TiaraInc. to the Court Opposing Reopening Depositions . (Attachments: # 1 Exhibit

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1)(Ascarrunz, Veronica) (Entered: 10/30/2015)

11/02/2015 271 Transcript of Telephone Status Conference held on October 21, 2015, beforeJudge Allison D. Burroughs. The Transcript may be purchased through theCourt Reporter, viewed at the public terminal, or viewed through PACER afterit is released. Court Reporter Name and Contact Information: Carol Scott [email protected] Redaction Request due 11/23/2015. RedactedTranscript Deadline set for 12/3/2015. Release of Transcript Restriction set for2/1/2016. (Scalfani, Deborah) (Entered: 11/02/2015)


11/02/2015 273 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 268Motion to Seal Document ; granting 269 Motion to Seal (Montes, Mariliz)(Entered: 11/02/2015)

11/03/2015 274 Electronic Clerk's Notes for proceedings held before Magistrate Judge JenniferC. Boal: Telephone Conference held on 11/3/2015. The Court reviewedpreliminary matters with the parties prior to the upcoming mediation. (CourtReporter: SEALED Digital Recording − For transcripts or CDs the partiesshould first seek leave of the Court. If the request is granted, the parties shouldthen contact Deborah Scalfani by email [email protected].)(Attorneys present: Lea, Sganga &Kaler for the plaintiff; Carsten, Chinitz & Doty for defendants;) (York,Steve)(York, Steve) (Entered: 11/03/2015)

11/03/2015 275 NOTICE of Withdrawal of Appearance by Gary M Ronan (Ronan, Gary)(Entered: 11/03/2015)

11/03/2015 276 NOTICE of Withdrawal of Appearance by Richard M. Zielinski (Zielinski,Richard) (Entered: 11/03/2015)

11/04/2015 278 Transcript of Telephone Conference held on September 18, 2015, before JudgeAllison D. Burroughs. The Transcript may be purchased through the CourtReporter, viewed at the public terminal, or viewed through PACER after it isreleased. Court Reporter Name and Contact Information: Catherine Handel [email protected] Redaction Request due 11/25/2015. RedactedTranscript Deadline set for 12/7/2015. Release of Transcript Restriction set for2/2/2016. (Scalfani, Deborah) (Entered: 11/04/2015)


11/06/2015 282 REPORT of Alternative Dispute Resolution Provider: Magistrate JudgeJennifer C. Boal reports that this case did not settle and should be restored toyour trial list. The parties should jointly contact the Deputy Clerk, Steve York,if they wish to engage in mediation efforts in the future. (York, Steve)(Entered: 11/06/2015)

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11/10/2015 283 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. CardiAQsMotion to Re−Open the Depositions of Mark Pace−Floridia and Krista Nealeis denied. [251, 277]. The Court notes, however, that during their depositionsand Randy Lanes previous deposition, Neovasc clearly over objected toquestions that should have been allowed. To compensate for this, but withoutre−opening the Floridia and Neale depositions, the Court will allow CardiAQto depose Randy Lane for three hours, with the extra one−and−a−half hoursallocated for customer topics not previously adequately covered as a result ofthe objections. This ruling will not impact the length of the upcoming Dr.Quadri deposition, which should not exceed three hours. (Folan, Karen)(Entered: 11/10/2015)

11/10/2015 284 STIPULATION for Order to Extend Expert Dates by CardiAQ ValveTechnologies, Inc.. (Lea, Christy) (Entered: 11/10/2015)

11/12/2015 285 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. ALLOWING284 Stipulation for Order to Extend Expert Dates filed by CardiAQ ValveTechnologies, Inc. (Montes, Mariliz) (Entered: 11/12/2015)

12/10/2015 286 Assented to MOTION for Leave to Appear Pro Hac Vice for admission ofJohn P. Flynn Filing fee: $ 100, receipt number 0101−5884133 by NeovascInc., Neovasc Tiara Inc.. (Attachments: # 1 Certification of John P. Flynn,Esq. in Support of Motion for Admission Pro Hac Vice)(Chinitz, Michael)(Entered: 12/10/2015)

12/11/2015 287 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 286Motion for Leave to Appear Pro Hac Vice Added John P. Flynn. Attorneysadmitted Pro Hac Vice must register for electronic filing if the attorneydoes not already have an ECF account in this district. To register go tothe Court website at www.mad.uscourts.gov. Select Case Information,then Electronic Filing (CM/ECF) and go to the CM/ECF RegistrationForm. Pursuant to Local Rule 83.5.3, local counsel shall also file anappearance in this matter. Further, local counsel shall review all filings andshall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Folan, Karen) (Entered:12/11/2015)

01/15/2016 288 NOTICE by Neovasc Inc., Neovasc Tiara Inc. of Defendants' Intention to Filea Dispositive Motion (Cacovean, Corina) (Entered: 01/15/2016)

01/15/2016 289 STATUS REPORT re Dispositive Motions by CardiAQ Valve Technologies,Inc.. (Lea, Christy) (Entered: 01/15/2016)

02/01/2016 290 MOTION for Summary Judgment by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Text of Proposed Order)(Graves, Charles) (Entered:02/01/2016)

02/01/2016 291 MEMORANDUM in Support re 290 MOTION for Summary Judgment filedby Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Entered: 02/01/2016)

02/01/2016 292 Statement of Material Facts L.R. 56.1 re 290 MOTION for SummaryJudgment filed by Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles)(Entered: 02/01/2016)

02/01/2016 293

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DECLARATION re 290 MOTION for Summary Judgment of Corina I.Cacovean by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Exhibit 1, #2 Exhibit 2−13 Slip Sheets for Sealed Documents, # 3 Exhibit 14, # 4 Exhibit15 Slip Sheet for Sealed Document, # 5 Exhibit 16, # 6 Exhibit 17 Slip Sheetfor Sealed Document, # 7 Exhibit 18, # 8 Exhibit 19, # 9 Exhibit 20, # 10Exhibit 21 Slip Sheet for Sealed Document, # 11 Exhibit 22, # 12 Exhibit 23Slip Sheet for Sealed Document)(Cacovean, Corina) (Entered: 02/01/2016)

02/01/2016 294 NOTICE OF MANUAL FILING by Neovasc Inc., Neovasc Tiara Inc.Unredacted copies of Neovasc's Memorandum of Law, Separate Statement ofUndisputed Facts and Sealed exhibits to Cacovean Declaration re 291Memorandum in Support of Motion, 292 Statement of Material Facts L.R.56.1, 293 Declaration,, (Graves, Charles) (Entered: 02/01/2016)

02/01/2016 295 Assented to MOTION for Leave to Appear Pro Hac Vice for admission ofJoshua A. Baskin Filing fee: $ 100, receipt number 0101−5955869 by NeovascInc., Neovasc Tiara Inc.. (Attachments: # 1 Certification of Joshua A. Baskin,Esq. in Support of Motion for Admission Pro Hac Vice)(Chinitz, Michael)(Entered: 02/01/2016)

02/01/2016 296 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of JoelC. Boehm Filing fee: $ 100, receipt number 0101−5955875 by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Certification of Joel C. Boehm, Esq. inSupport of Motion for Admission Pro Hac Vice)(Chinitz, Michael) (Entered:02/01/2016)

02/01/2016 300 MOTION to Seal and Impound Defendants' Materials and Exhibits in Supportof Defendants' Motion for Partial Summary Judgment by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Text of Proposed Order)(Montes,Mariliz) (Entered: 02/03/2016)

02/02/2016 297 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 295Motion for Leave to Appear Pro Hac Vice Added Joshua A. Baskin.Attorneys admitted Pro Hac Vice must register for electronic filing if theattorney does not already have an ECF account in this district. To registergo to the Court website at www.mad.uscourts.gov. Select CaseInformation, then Electronic Filing (CM/ECF) and go to the CM/ECFRegistration Form. Pursuant to Local Rule 83.5.3, local counsel shall alsofile an appearance in this matter. Further, local counsel shall review all filingsand shall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Montes, Mariliz) (Entered:02/02/2016)

02/02/2016 298 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 296Motion for Leave to Appear Pro Hac Vice Added Joel C. Boehm. Attorneysadmitted Pro Hac Vice must register for electronic filing if the attorneydoes not already have an ECF account in this district. To register go tothe Court website at www.mad.uscourts.gov. Select Case Information,then Electronic Filing (CM/ECF) and go to the CM/ECF RegistrationForm. Pursuant to Local Rule 83.5.3, local counsel shall also file anappearance in this matter. Further, local counsel shall review all filings andshall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Montes, Mariliz) (Entered:02/02/2016)

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02/02/2016 299 Recommendations for Scheduling Order (JOINT PROPOSED PRETRIALSCHEDULING ORDER). (Graves, Charles) (Entered: 02/02/2016)


02/03/2016 305 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. The PartiesProposed Pretrial Schedule is So Ordered, except as follows: the Final PretrialConference is rescheduled to April 11, 2016 at 2:00 pm and the parties musttherefore file the following by April 8: 16.5(d) Pretrial Memorandum;proposed jury instructions, proposed interrogatories or special verdict form;proposed questions for voir dire; 16.5(f) Trial Briefs. In addition, a summaryjudgment motion hearing is scheduled for March 17 at 11:00 am. (Folan,Karen) (Entered: 02/03/2016)

02/04/2016 306 Assented to MOTION for Leave to Appear Pro Hac Vice for admission ofJoshua Stowell Filing fee: $ 100, receipt number 0101−5961375 by CardiAQValve Technologies, Inc.. (Attachments: # 1 Exhibit Exhibit A −Declaration)(Kaler, Robert) (Entered: 02/04/2016)

02/04/2016 307 Assented to MOTION for Leave to Appear Pro Hac Vice for admission ofBrian C. Horne Filing fee: $ 100, receipt number 0101−5961429 by CardiAQValve Technologies, Inc.. (Attachments: # 1 Exhibit Exhibit A−−Declaration)(Kaler, Robert) (Entered: 02/04/2016)

02/04/2016 308 Assented to MOTION for Leave to Appear Pro Hac Vice for admission ofJenna C. Kelleher Filing fee: $ 100, receipt number 0101−5961450 byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit Exhibit A −−Declaration)(Kaler, Robert) (Entered: 02/04/2016)

02/05/2016 309 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 306Motion for Leave to Appear Pro Hac Vice Added Joshua Stowell. Attorneysadmitted Pro Hac Vice must register for electronic filing if the attorneydoes not already have an ECF account in this district. To register go tothe Court website at www.mad.uscourts.gov. Select Case Information,then Electronic Filing (CM/ECF) and go to the CM/ECF RegistrationForm. Pursuant to Local Rule 83.5.3, local counsel shall also file anappearance in this matter. Further, local counsel shall review all filings andshall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Montes, Mariliz) (Entered:02/05/2016)

02/05/2016 310 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 307Motion for Leave to Appear Pro Hac Vice Added Brian C. Horne. Attorneysadmitted Pro Hac Vice must register for electronic filing if the attorneydoes not already have an ECF account in this district. To register go tothe Court website at www.mad.uscourts.gov. Select Case Information,then Electronic Filing (CM/ECF) and go to the CM/ECF RegistrationForm. Pursuant to Local Rule 83.5.3, local counsel shall also file anappearance in this matter. Further, local counsel shall review all filings andshall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Montes, Mariliz) (Entered:02/05/2016)

02/05/2016 311

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Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 308Motion for Leave to Appear Pro Hac Vice Added Jenna C. Kelleher.Attorneys admitted Pro Hac Vice must register for electronic filing if theattorney does not already have an ECF account in this district. To registergo to the Court website at www.mad.uscourts.gov. Select CaseInformation, then Electronic Filing (CM/ECF) and go to the CM/ECFRegistration Form. Pursuant to Local Rule 83.5.3, local counsel shall alsofile an appearance in this matter. Further, local counsel shall review all filingsand shall personally appear in Court for any hearings or conferences, unlessexpressly excused by the Court for good cause. (Montes, Mariliz) (Entered:02/05/2016)

02/29/2016 312 Assented to MOTION to Seal Opposition and Supporting Documents toDefendants' Motion for Partial Summary Judgment by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1[Proposed] Redacted Opposition to Motion for Partial Summary Judgment, # 3Exhibit 2 Appendix A to Opposition to Motion for Partial Summary Judgment,# 4 Exhibit 3 Statement of Disputed Facts in Opposition to Motion for PartialSummary Judgment, # 5 Exhibit 4 Exhibits 101−124 to Ratz Declaration inOpposition to Motion for Partial Summary Judgment, # 6 Exhibit 5 Exhibits130−157, 155−160, 163−169 to Speegle Declaration in Opposition to Motionfor Partial Summary Judgment, # 7 Exhibit 6 Ratz Declaration in Support ofOpposition to Motion for Partial Summary Judgment)(Sganga, John) (Entered:02/29/2016)

02/29/2016 313 AFFIDAVIT of Mark A. Speegle in Opposition re 290 MOTION forSummary Judgment filed by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Exhibit 154, # 2 Exhibit 161, # 3 Exhibit 162, # 4 Exhibit170)(Speegle, Mark) (Entered: 02/29/2016)

03/01/2016 314 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 312Assented−Motion to Seal and Impound Opposition of Plaintiff's to 290Defendants' Motion for Partial Summary Judgment and SupportingDocuments of Plaintiff (Montes, Mariliz) (Entered: 03/01/2016)

03/11/2016 319 MOTION to Seal Portions of Neovasc's Reply in support of Partial Motion forSummary Judgment and portions of Response to CardiAQ's Statement ofDisputed Material Facts by Neovasc Inc., Neovasc Tiara Inc..(Graves,Charles) (Main Document 319 replaced on 3/14/2016) (Montes, Mariliz).(Additional attachment(s) added on 3/14/2016: # 1 Text of Proposed Order)(Montes, Mariliz). (Entered: 03/11/2016)

03/11/2016 320 REPLY to Response to 290 MOTION for Summary Judgment filed byNeovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Entered: 03/11/2016)

03/11/2016 321 Statement of Material Facts L.R. 56.1 re 290 MOTION for SummaryJudgment Response in Opposition to CardiAQ's Statement of Material Factsfiled by Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Entered:03/11/2016)

03/14/2016 322 Notice of correction to docket made by Court staff. Correction: Docket 319corrected by detaching proposed order from motion and re−filing it as anattachment. (Montes, Mariliz) (Entered: 03/14/2016)

03/14/2016 323

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Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 319Motion to Seal (Folan, Karen) (Entered: 03/14/2016)

03/15/2016 324 Assented to MOTION to Seal Supporting Documents by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Text of Proposed Order, # 2Exhibit)(Sganga, John) (Entered: 03/15/2016)

03/15/2016 325 Supplemental AFFIDAVIT in Opposition re 290 MOTION for SummaryJudgment filed by CardiAQ Valve Technologies, Inc.. (Attachments: # 1Affidavit)(Sganga, John) (Entered: 03/15/2016)


03/18/2016 330 NOTICE of Appearance by Alan D. Rose, Sr on behalf of Neovasc Inc.,Neovasc Tiara Inc. (Rose, Alan) (Entered: 03/18/2016)

03/23/2016 331 Assented to MOTION to Seal Presentation Slides Presented at the March 17,2016 Hearing on Defendants' Motion for Partial Summary Judgment byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Text of Proposed Order,# 2 Exhibit 1)(Lea, Christy) (Entered: 03/23/2016)

03/23/2016 332 NOTICE by CardiAQ Valve Technologies, Inc. of Lodging PresentationSlides Presented at the March 17, 2016 Hearing on Defendants' Motion forPartial Summary Judgment (Attachments: # 1 Exhibit 1)(Lea, Christy)(Entered: 03/23/2016)

03/23/2016 333 CORPORATE DISCLOSURE STATEMENT by CardiAQ ValveTechnologies, Inc. identifying Other Affiliate Edwards Lifesciences CardiAQLLC for CardiAQ Valve Technologies, Inc... (Lea, Christy) (Entered:03/23/2016)


03/25/2016 335 Transcript of Hearing held on March 17, 2016, before Judge Allison D.Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Carol Scott [email protected] Redaction Request due 4/15/2016. RedactedTranscript Deadline set for 4/25/2016. Release of Transcript Restriction set for6/23/2016. (Scalfani, Deborah) (Entered: 03/25/2016)


03/25/2016 337 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Motion Hearing held on 3/25/2016 re 290 MOTION for SummaryJudgment filed by Neovasc Tiara Inc. Oral arguments by the parties. Courttakes matter under advisement. Colloquy re: trial schedule. Court will sit fulldays 10−4, will select 12 sitting jurors, time limits of 30 hours each notincluding openings and closings. Neovasc Inc., Daubert Hearing/Final PretrialConference set for 4/11/2016 01:00 PM in Courtroom 17 before Judge Allison

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D. Burroughs. (Court Reporter: Carol Scott [email protected].)(Attorneys present: Lea, Kelleher, Kaler, Rose,Graves, Carsten, Boehm, Flynn, Baskin, Ascarrunz) (Folan, Karen) (Entered:03/25/2016)

03/25/2016 339 MOTION to Seal Exhibits in support of Neovasc's motions in limine andmotions to exclude expert testimony by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Text of Proposed Order)(Graves, Charles) (Entered:03/25/2016)

03/25/2016 340 MOTION in Limine to Exclude Purported Expert Testimony of CardiAQ's J.Brent Ratz by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Text ofProposed Order)(Graves, Charles) (Entered: 03/25/2016)

03/25/2016 341 MEMORANDUM in Support re 340 MOTION in Limine to ExcludePurported Expert Testimony of CardiAQ's J. Brent Ratz filed by Neovasc Inc.,Neovasc Tiara Inc.. (Graves, Charles) (Entered: 03/25/2016)

03/25/2016 342 DECLARATION re 340 MOTION in Limine to Exclude Purported ExpertTestimony of CardiAQ's J. Brent Ratz by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Exhibit 1, # 2 Exhibit 2 (filed under seal))(Cacovean,Corina) (Entered: 03/25/2016)

03/25/2016 343 Assented to MOTION to Seal Motion in limine No. 3 and SupportingDocuments by CardiAQ Valve Technologies, Inc.. (Attachments: # 1 Text ofProposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6Exhibit 5)(Lea, Christy) (Entered: 03/25/2016)

03/25/2016 344 MOTION in Limine to Exclude Expert Testimony of Michael Wagner byNeovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Text of ProposedOrder)(Graves, Charles) (Entered: 03/25/2016)

03/25/2016 345 MOTION in Limine No. 1 to Exclude Any Exhibit or Other Evidence UsingNeovasc's "PUBLICDOMAIN" Production Prefix by CardiAQ ValveTechnologies, Inc..(Lea, Christy) (Entered: 03/25/2016)

03/25/2016 346 MEMORANDUM in Support re 344 MOTION in Limine to Exclude ExpertTestimony of Michael Wagner filed by Neovasc Inc., Neovasc Tiara Inc..(Graves, Charles) (Entered: 03/25/2016)

03/25/2016 347 MEMORANDUM in Support re 345 MOTION in Limine No. 1 to ExcludeAny Exhibit or Other Evidence Using Neovasc's "PUBLICDOMAIN"Production Prefix filed by CardiAQ Valve Technologies, Inc.. (Lea, Christy)(Entered: 03/25/2016)

03/25/2016 348 DECLARATION re 344 MOTION in Limine to Exclude Expert Testimony ofMichael Wagner by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1Exhibit 1 (filed under seal), # 2 Exhibit 2 (filed under seal), # 3 Exhibit 3 (filedunder seal))(Cacovean, Corina) (Entered: 03/25/2016)

03/25/2016 349 MOTION in Limine No. 2 to Exclude Evidence or Argument re the Sufficiencyof CardiAQ's Revised Disclosure of Trade Secrets by CardiAQ ValveTechnologies, Inc..(Lea, Christy) (Entered: 03/25/2016)

03/25/2016 350 MEMORANDUM in Support re 349 MOTION in Limine No. 2 to ExcludeEvidence or Argument re the Sufficiency of CardiAQ's Revised Disclosure of

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Trade Secrets filed by CardiAQ Valve Technologies, Inc.. (Lea, Christy)(Entered: 03/25/2016)

03/25/2016 351 MOTION in Limine No. 3 to Exclude Any Argument or Evidence re the Safetyof the CardiAQ TMVI Device by CardiAQ Valve Technologies, Inc..(Lea,Christy) (Entered: 03/25/2016)

03/25/2016 352 MOTION in Limine No. 4 to Preclude Neovasc From Offering Any Evidenceor Argument re CardiAQ's Request for Injunctive Relief or the FinancialImpact of Any Damages Award by CardiAQ Valve Technologies, Inc..(Lea,Christy) (Entered: 03/25/2016)

03/25/2016 353 MEMORANDUM in Support re 352 MOTION in Limine No. 4 to PrecludeNeovasc From Offering Any Evidence or Argument re CardiAQ's Request forInjunctive Relief or the Financial Impact of Any Damages Award filed byCardiAQ Valve Technologies, Inc.. (Lea, Christy) (Entered: 03/25/2016)

03/25/2016 354 MOTION in Limine to Exclude Certain Expert Opinions of Richard Hillsteadby Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Text of ProposedOrder)(Graves, Charles) (Entered: 03/25/2016)

03/25/2016 355 MEMORANDUM in Support re 354 MOTION in Limine to Exclude CertainExpert Opinions of Richard Hillstead filed by Neovasc Inc., Neovasc TiaraInc.. (Graves, Charles) (Entered: 03/25/2016)

03/25/2016 356 AFFIDAVIT in Support re 349 MOTION in Limine No. 2 to ExcludeEvidence or Argument re the Sufficiency of CardiAQ's Revised Disclosure ofTrade Secrets, 352 MOTION in Limine No. 4 to Preclude Neovasc FromOffering Any Evidence or Argument re CardiAQ's Request for InjunctiveRelief or the Financial Impact of Any Damages Award, 345 MOTION inLimine No. 1 to Exclude Any Exhibit or Other Evidence Using Neovasc's"PUBLICDOMAIN" Production Prefix, 351 MOTION in Limine No. 3 toExclude Any Argument or Evidence re the Safety of the CardiAQ TMVI Devicefiled by CardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit 1, # 2Exhibit 3, # 3 Exhibit 7)(Lea, Christy) (Entered: 03/25/2016)

03/25/2016 357 DECLARATION re 354 MOTION in Limine to Exclude Certain ExpertOpinions of Richard Hillstead by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Exhibit 1 (filed under seal), # 2 Exhibit 2 (filed under seal),# 3 Exhibit 3 (filed under seal), # 4 Exhibit 4 (filed under seal), # 5 Exhibit5)(Cacovean, Corina) (Entered: 03/25/2016)

03/25/2016 358 MOTION in Limine by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1Text of Proposed Order)(Graves, Charles) (Entered: 03/25/2016)

03/25/2016 359 MEMORANDUM in Support re 358 MOTION in Limine Nos. 1−4 filed byNeovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Entered: 03/25/2016)

03/25/2016 360 DECLARATION re 358 MOTION in Limine Nos. 1−4 by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 (filed underseal), # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5 (filed under seal), # 6 Exhibit6 (filed under seal), # 7 Exhibit 7 (filed under seal), # 8 Exhibit 8 (filed underseal), # 9 Exhibit 9 (filed under seal), # 10 Exhibit 10 (filed underseal))(Cacovean, Corina) (Entered: 03/25/2016)

03/25/2016 361

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SEALED exhibits to declaration of Corina I. Cacovean in support ofdefendants Neovasc and Neovasc Tiara's motion for exclude certain expertopinions of Richard Hillstead, FILED UNDER SEAL. (Attachments: # 1Exhibit, # 2 Exhibit, # 3 Exhibit)(Flaherty, Elaine) Modified on 3/28/2016(Flaherty, Elaine). (Entered: 03/28/2016)

03/25/2016 362 SEALED Exhibit two to declaration of Corina Cacovean in support ofDefendants Neovasc and Neovasc Tiara, Inc.'s motion to exclude purportedexpert testimony of Brent Ratz, FILED UNDER SEAL. (Flaherty, Elaine)Modified on 3/28/2016 (Flaherty, Elaine). (Entered: 03/28/2016)

03/25/2016 363 SEALED exhibits to declaration of Corina Cacovean re: defendants Neovascand Neovasc Tiara's Motion to exclude expert testimony of Michael Wagner,FILED UNDER SEAL. (Attachments: # 1 Exhibit, # 2 Exhibit)(Flaherty,Elaine) (Entered: 03/28/2016)



03/30/2016 367 SEALED Portions of CardiAQ's Memorandum in support of Motion in LimineNo. 3, FILED UNDER SEAL. (Flaherty, Elaine) (Entered: 03/30/2016)

03/30/2016 368 SEALED Portions of Exhibit 2 to the declaration of Christy Lea in support ofCardiAQs Motions in Limine Nos. 1−4, Portions of Exhibit 4 to theDeclaration of Christy Lea in support of CardiAQ's Motions in Limine Nos.1−4, Exhibit 5 to Declaration of Christy Lea in Support of CardiAQ's Motionsin Limine Nos. 1−4 and Portions of Exhibit 6 to the Declaration of Christy G.Lea in support of CardiAQ's Motions in Limine Nos. 1−4, FILED UNDERSEAL. (Flaherty, Elaine) (Entered: 03/30/2016)

04/04/2016 369 MOTION for Leave to Appear Pro Hac Vice for admission of Colleen BalFiling fee: $ 100, receipt number 0101−6053115 by Neovasc Inc., NeovascTiara Inc.. (Attachments: # 1 Certification of Colleen Bal, Esq. in Support ofMotion for Admission Pro Hac Vice)(Chinitz, Michael) (Entered: 04/04/2016)

04/05/2016 370 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 369Motion for Leave to Appear Pro Hac Vice Added Bal. Attorneys admittedPro Hac Vice must register for electronic filing if the attorney does notalready have an ECF account in this district. To register go to the Courtwebsite at www.mad.uscourts.gov. Select Case Information, thenElectronic Filing (CM/ECF) and go to the CM/ECF Registration Form.Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance inthis matter. Further, local counsel shall review all filings and shall personallyappear in Court for any hearings or conference, unless expressly excused bythe Court for good cause. (Flaherty, Elaine) (Entered: 04/05/2016)

04/06/2016 371 Assented to MOTION to Seal Opposition and Supporting Documents toDefendants' Motion to Exclude All Testimony of Michael J. Wagner byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Text of Proposed Order,# 2 Exhibit 1, # 3 Exhibit 2)(Lea, Christy) (Entered: 04/06/2016)

04/06/2016 372

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AFFIDAVIT in Opposition re 344 MOTION in Limine to Exclude ExpertTestimony of Michael Wagner filed by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Exhibit 26, # 2 Exhibit 608, # 3 Exhibit 359, # 4 ExhibitA)(Lea, Christy) (Entered: 04/06/2016)


04/07/2016 374 Assented to MOTION to Seal by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1)(Lea, Christy)(Entered: 04/07/2016)

04/07/2016 375 Assented to MOTION to Seal Exhibit 26 to the Declaration of Lea in Supportof Opposition to Defendants' Motion to Exclude All Testimony of Dr. Hillsteadby CardiAQ Valve Technologies, Inc.. (Attachments: # 1 Text of ProposedOrder, # 2 Exhibit 1)(Lea, Christy) (Entered: 04/07/2016)

04/07/2016 376 Opposition re 354 MOTION in Limine to Exclude Certain Expert Opinions ofRichard Hillstead filed by CardiAQ Valve Technologies, Inc.. (Lea, Christy)(Entered: 04/07/2016)

04/07/2016 377 AFFIDAVIT in Opposition re 354 MOTION in Limine to Exclude CertainExpert Opinions of Richard Hillstead filed by CardiAQ Valve Technologies,Inc.. (Attachments: # 1 Exhibit 384, # 2 Exhibit B, # 3 Exhibit 26 (filed underseal), # 4 Exhibit C)(Lea, Christy) (Entered: 04/07/2016)

04/07/2016 378 Opposition re 340 MOTION in Limine to Exclude Purported ExpertTestimony of CardiAQ's J. Brent Ratz filed by CardiAQ Valve Technologies,Inc.. (Lea, Christy) (Entered: 04/07/2016)

04/07/2016 379 AFFIDAVIT in Opposition re 340 MOTION in Limine to Exclude PurportedExpert Testimony of CardiAQ's J. Brent Ratz filed by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Exhibit D, # 2 Exhibit E)(Lea, Christy)(Entered: 04/07/2016)

04/07/2016 385 SEALED Portions of CardiAQ's opposition to Defendants' Motion to Excludeall testimony of Michael J. Wagner, FILED UNDER SEAL. (Flaherty, Elaine)(Entered: 04/08/2016)

04/07/2016 386 SEALED Exhibit 26 to the Declaration of Christy G. Lea by CardiAQ inopposition to Defendants' Motion to Exclude all testimony of Michael J.Wagner, FILED UNDER SEAL. (Attachments: # 1 Exhibit 359 toDeclaration, # 2 Exhibit 608 to Declaration)(Flaherty, Elaine) (Entered:04/08/2016)

04/08/2016 380 Assented to MOTION to Seal Opposition and Supporting Documents toDefendants' Motions in limine Nos. 1−4 by CardiAQ Valve Technologies,Inc.. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, #4 Exhibit 3)(Lea, Christy) (Entered: 04/08/2016)

04/08/2016 381 Opposition re 358 MOTION in Limine No. 1 filed by CardiAQ ValveTechnologies, Inc.. (Lea, Christy) (Entered: 04/08/2016)

04/08/2016 382 Opposition re 358 MOTION in Limine No. 3 filed by CardiAQ ValveTechnologies, Inc.. (Lea, Christy) (Entered: 04/08/2016)

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04/08/2016 383 AFFIDAVIT in Opposition re 358 MOTION in Limine No. 3 filed byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit G, # 2 ExhibitL, # 3 Exhibit M)(Lea, Christy) (Entered: 04/08/2016)


04/08/2016 387 MOTION to Seal Neovasc's Opposition to CardiAQ's Motion in Limine No. 3and Ex. 2 to Cacovean Declaration in support of oppositions to motions inlimine by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Text ofProposed Order)(Graves, Charles) (Entered: 04/08/2016)

04/08/2016 388 MEMORANDUM in Opposition re 345 MOTION in Limine No. 1 to ExcludeAny Exhibit or Other Evidence Using Neovasc's "PUBLICDOMAIN"Production Prefix filed by Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles)(Entered: 04/08/2016)

04/08/2016 389 MEMORANDUM in Opposition re 349 MOTION in Limine No. 2 to ExcludeEvidence or Argument re the Sufficiency of CardiAQ's Revised Disclosure ofTrade Secrets filed by Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles)(Entered: 04/08/2016)

04/08/2016 390 MEMORANDUM in Opposition re 351 MOTION in Limine No. 3 to ExcludeAny Argument or Evidence re the Safety of the CardiAQ TMVI Device filed byNeovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Entered: 04/08/2016)

04/08/2016 391 PRETRIAL MEMORANDUM by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Lea,Christy) (Entered: 04/08/2016)

04/08/2016 392 MEMORANDUM in Opposition re 352 MOTION in Limine No. 4 toPreclude Neovasc From Offering Any Evidence or Argument re CardiAQ'sRequest for Injunctive Relief or the Financial Impact of Any Damages Awardfiled by Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Entered:04/08/2016)

04/08/2016 393 DECLARATION re 388 Memorandum in Opposition to Motion, 389Memorandum in Opposition to Motion, 392 Memorandum in Opposition toMotion, 390 Memorandum in Opposition to Motion by Neovasc Inc., NeovascTiara Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 [Filed UnderSeal])(Cacovean, Corina) (Entered: 04/08/2016)




04/08/2016 397 SEALED Memorandum of defendants Neovasc Inc. and Neovasc Tiara Inc.'sOpposition to CardiAQ's Motion in Limine No. 3, FILED UNDER SEAL.(Flaherty, Elaine) (Entered: 04/08/2016)

04/08/2016 398

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SEALED Exhibit 2 to the Declaration of Coina I. Cacovean of defendants inOpposition to CardiAQ's Motions in Limine, FILED UNDER SEAL.(Flaherty, Elaine) (Entered: 04/08/2016)

04/08/2016 399 TRIAL BRIEF Concerning the Merits, Evidentiary Issues and ProceduralIssues by CardiAQ Valve Technologies, Inc.. (Lea, Christy) (Entered:04/08/2016)

04/08/2016 400 TRIAL BRIEF Concerning Jury Instructions and Related Documents byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit A, # 2 ExhibitB, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Lea, Christy)(Entered: 04/08/2016)

04/08/2016 401 TRIAL BRIEF by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1Attachment 1 (Neovasc's Proposed Jury Instructions and Proposed VerdictForm), # 2 Attachment 2 (Neovasc's Objections and Responses to CardiAQ'sProposed Jury Instructions and Verdict Form), # 3 Attachment 3 (ProposedVoir Dire Questions))(Graves, Charles) (Entered: 04/08/2016)

04/08/2016 402 NOTICE by CardiAQ Valve Technologies, Inc. of Foreign Authority(Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7, # 8Attachment 8, # 9 Attachment 9, # 10 Attachment 10, # 11 Attachment 11, #12 Attachment 12, # 13 Attachment 13)(Lea, Christy) (Entered: 04/08/2016)

04/08/2016 403 APPENDIX/EXHIBIT re 401 Trial Brief, of Foreign Authorities by NeovascInc., Neovasc Tiara Inc.. (Attachments: # 1 Attachments 1−4, # 2 Attachments5−11)(Graves, Charles) (Entered: 04/08/2016)

04/08/2016 404 SEALED Exhibit 26 to declaration of Christy G. Lea re: CardiAQ's oppositionto defendants' Motion to exclude testimony of Dr. Hillstead, FILED UNDERSEAL. (Flaherty, Elaine) (Entered: 04/11/2016)

04/08/2016 405 SEALED Portions of CardiAQ's Opposition to defendants' Motion in LimineNo.2, FILED UNDER SEAL. (Flaherty, Elaine) (Entered: 04/11/2016)

04/08/2016 406 SEALED Portions of CardiAQ's Opposition to Defendants' Motion in LimineNo. 4, FILED UNDER SEAL. (Flaherty, Elaine) (Main Document 406replaced on 4/13/2016) (Folan, Karen). (Entered: 04/11/2016)

04/08/2016 407 SEALED exhibits to the delcaration of Christy G. Lea of CardiAQ inopposition to defendants Motion in limine nos. 1,3, and 4, FILED UNDERSEAL. (Attachments: # 1 Exhibit, # 2 Exhibit)(Flaherty, Elaine) (Entered:04/11/2016)

04/12/2016 408 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Final Pretrial Conference held on 4/11/2016. Colloquy re:Summary Judgment motion. Order to issue. Colloquy re: trial − 30 hours perside which includes openings and closings. No jury questionnaire, 12 jurorswill be selected, 3 strikes per side. Colloquy re: motions in limine. Order toissue. (Court Reporter: Carol Scott at [email protected].)(Attorneyspresent: various) (Folan, Karen) Modified on 4/14/2016 (Scalfani, Deborah).(Entered: 04/12/2016)

04/13/2016 409 NOTICE by Neovasc Inc., Neovasc Tiara Inc. of Lodging Slides Related toMotion to Exclude Expert Testimony of Michael J. Wagner Presented at

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Pretrial Hearing on April 11, 2016 (Attachments: # 1 Exhibit 1)(Graves,Charles) (Entered: 04/13/2016)

04/19/2016 410 NOTICE by Neovasc Inc., Neovasc Tiara Inc. of Intent to Seek Judicial Noticeof Trial Exhibits (Attachments: # 1 Exhibit A)(Graves, Charles) (Entered:04/19/2016)

04/21/2016 411 Assented to MOTION for Leave to Appear Pro Hac Vice for admission ofHans L. Mayer Filing fee: $ 100, receipt number 0101−6077076 by CardiAQValve Technologies, Inc.. (Attachments: # 1 Exhibit Exhibit A)(Kaler, Robert)(Entered: 04/21/2016)

04/21/2016 412 Judge Allison D. Burroughs: ELECTRONIC ORDER entered with attachedproposed voir dire. After carefully considering the parties' proposed voir direquestions [ECF Nos. 400−5, 401−3], and making certain discretionaryalterations, additions, and deletions, the Court finds that the attached voir direquestions fairly address the substance of the parties' concerns and will enablethe parties to exercise any challenges to prospective jurors in this case. Theparties may submit comments regarding these voir dire questions by April 28,2016. (Folan, Karen) (Entered: 04/21/2016)

04/22/2016 413 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 411Motion for Leave to Appear Pro Hac Vice Added Mayer. Attorneys admittedPro Hac Vice must register for electronic filing if the attorney does notalready have an ECF account in this district. To register go to the Courtwebsite at www.mad.uscourts.gov. Select Case Information, thenElectronic Filing (CM/ECF) and go to the CM/ECF Registration Form.Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance inthis matter. Further, local counsel shall review all filings and shall personallyappear in Court for any hearings or conferences, unless expressly excused bythe Court for good cause. (Flaherty, Elaine) (Entered: 04/22/2016)

04/25/2016 414 Transcript of Motion Hearing held on April 11, 2016, before Judge Allison D.Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Carol Scott [email protected] Redaction Request due 5/16/2016. RedactedTranscript Deadline set for 5/26/2016. Release of Transcript Restriction set for7/25/2016. (Scalfani, Deborah) (Entered: 04/25/2016)


04/25/2016 416 Errata by CardiAQ Valve Technologies, Inc. to 391 Pretrial Memorandum .(Lea, Christy) (Entered: 04/25/2016)

04/25/2016 417 Judge Allison D. Burroughs: ORDER entered. MEMORANDUM ANDORDER entered. For the reasons set forth herein, Neovascs Motion for PartialSummary Judgment [ECF No. 290] is granted as to Count IV (the fraud count)and denied as to Counts I and VI (for correction of inventorship and Chapter93A).(Folan, Karen) (Entered: 04/25/2016)

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04/25/2016 418 69 Judge Allison D. Burroughs: ORDER entered. MEMORANDUM ANDORDER entered. Omnibus Memorandum and Order Resolving Motions toExclude and Motions in Limine [ECF Nos. 340, 344, 345, 349, 351, 352, 354,358]. (Folan, Karen) (Entered: 04/25/2016)

04/28/2016 419 Letter/request (non−motion) from CardiAQ Valve Technologies, Inc. reProposed Voir Dire. (Lea, Christy) (Entered: 04/28/2016)

04/28/2016 420 Case no longer referred to Magistrate Judge Marianne B. Bowler. (Garvin,Brendan) (Entered: 04/28/2016)

04/28/2016 421 Letter/request (non−motion) from Charles T. Graves for Defendants NeovascInc. and Neovasc Tiara Inc. in response to Court Order 412 and CardiAQ'sletter 419 re Court's Proposed Voir Dire . (Attachments: # 1 Redlined versionof Court's Proposed Voir Dire)(Graves, Charles) (Entered: 04/28/2016)

05/02/2016 422 BRIEF by CardiAQ Valve Technologies, Inc. re Evidence of Product Safety.(Lea, Christy) (Entered: 05/02/2016)

05/02/2016 423 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 1 held on 5/2/2016. Jury of 12 sworn. Preliminaryjury instructions given. (Court Reporter: Debra Joyce [email protected].)(Attorneys present: various) (Folan, Karen) (Entered:05/02/2016)

05/02/2016 424 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. On May 2,2016, following jury empanelment, the Court resolved from the bench theissues raised in CardiAQs Memorandum on Evidence of Product Safety. [ECFNo. 422]. Afterwards, Neovasc raised four objections in anticipation oftomorrows opening arguments, two of which the Court resolved from thebench. The two remaining objections are resolved via this eOrder:1. First,Neovasc objected to CardiAQ arguing that Neovasc had a duty to disclose toCardiAQ its allegedly competing conduct. In the Order resolving NeovascsMotion for Summary Judgment [ECF No. 417], the Court held that Neovascdid not commit fraud by failing to disclosebecause Neovasc did not make anyaffirmative representations at the outset of its business relationship that itwould not compete, it did not defraud CardiAQ by failing to disclose suchactivity once it began. Though Neovasc did not have a common law duty todisclose its competing activity, its failure to disclose is relevant to the Chapter93A count and therefore evidence and argument regarding its failure todisclose are admissible. To prove a Chapter 93A claim, [I]t is neithernecessary nor sufficient that a particular act or practice violate common orstatutory law. In re Pharm. Indus. Average Wholesale Price Litig., 582 F.3d156, 184 (1st Cir. 2009) (internal quotations omitted). Rather, Massachusettscourts evaluate unfair and deceptive trade practice claims based on thecircumstances of each case, leaving the determination of what constitutes anunfair trade practice to the finder of fact. Id.; see also Cooper v. CharterCommcns Entertainments I, LLC, 760 F.3d 103, 111 (1st Cir. 2014)([B]ecause there is no limit to human inventiveness in this field, Massachusettscourts evaluate unfair and deceptive trade practice claims based on thecircumstances of each case.) (internal quotations omitted). Chapter 93Abroadly imposes liability for conduct that fall[s] within the penumbra of somecommon−law, statutory, or other established concept of unfairness or [is]immoral, unethical, oppressive or unscrupulous. Elec. Ins. Co. v. Great S. Fin.

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Corp., No. CV 14−14172−FDS, 2016 WL 1452338, at *10 (D. Mass. Apr. 13,2016) (quoting Commercial Union Ins. Co. v. Seven Provinces Ins. Co., 217F.3d 33, 40 (1st Cir. 2000)). Accordingly, even though Neovasc did not have astandalone duty to disclose its competing conduct, its alleged failure todisclosewhile continuing to work with CardiAQ and obtaining CardiAQsconfidential informationis relevant to whether its conduct as a wholeconstituted unfair and deceptive conduct in violation of Chapter 93A. SeeV.S.H. Realty, Inc. v. Texaco, Inc., 757 F.2d 411, 417 (1st Cir. 1985)(Massachusetts case law suggests that one difference between a fraud claimand the more liberal 93A is allowance of a cause of action even in the absenceof a duty to disclose.).2. Second, Neovasc objected to CardiAQ arguing thatNeovasc breached the Non−Disclosure Agreement (NDA) by failing to returnCardiAQs Confidential Information upon request. The NDA states that [u]ponDisclosures request, Recipient shall immediately return all written, graphic orother tangible items of Confidential Information and all copies therefore,except for one copy which may be retain for record retention purposes only....[ECF No. 64−2 8]. In the parties Joint Pretrial Memo, filed on April 8, 2016,CardiAQ stated that one issue of disputed fact regarding the breach of contractclaim was whether Neovasc failed to immediately return all CardiAQsconfidential information upon CardiAQs request. [ECF No. 391 at 18]. InNeovascs Trial Brief [ECF No. 401 at 11], in its Objections to CardiAQsProposed Jury Instructions [ECF No. 401−2 at 11], and again today in Court,Neovasc argued that CardiAQ could not advance this breach of contract theoryat trial, because CardiAQ had never raised it before. The Court agrees withNeovasc and will not allow CardiAQ to advance this breach of contract theory.The operative complaint does not reference the section of the NDA at issuenor allege that CardiAQ requested and/or that Neovasc failed to returnConfidential Information. [ECF No. 64]. CardiAQ argues that it only learnedof this breach during discovery. CardiAQ, however, did not need anydiscovery from Neovasc to determine whether it had received the requestedConfidential Information. Moreover, CardiAQ had ample opportunity toamend its complaint over the past year, rather than raise this theory for the firsttime in its Pretrial Memo. See Torres−Rios v. LPS Labs., Inc., 152 F.3d 11, 16(1st Cir. 1998) (Allowing addition of a new theory of liability after... discoveryhad closed in April unquestionably would prejudice defendant.). Though theComplaint included a count for breach of the NDA, the theory advanced wasthat Neovasc used and disclosed CardiAQs Confidential Information [ECF No.64 41−43], which is substantially different from the new breach theory basedon a failure to return. See NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28,3435 (1st Cir. 1994) (finding that Court may only infer unpleaded legal theoryif the essential allegations have already been pled); see also Vieira v. First Am.Title Ins. Co., 668 F. Supp. 2d 282, 289 (D. Mass. 2009) (noting that apleading must explain what obligations the alleged contract imposed on eachof the parties to avoid dismissal under Rule 12(b)(6))). (Folan, Karen)(Entered: 05/03/2016)

05/03/2016 427 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 2 held on 5/3/2016. A. Quadri sworn and testifies.(Court Reporter: Lee Marzilli at [email protected].)(Attorneys present:various) (Folan, Karen) (Entered: 05/04/2016)

05/04/2016 425 BRIEF by CardiAQ Valve Technologies, Inc. re Evidence of Neovasc's

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Customer Relationships. (Lea, Christy) (Entered: 05/04/2016)

05/04/2016 426 BRIEF by CardiAQ Valve Technologies, Inc. re Instruction to Cure Neovasc'sViolation of the Court's Order re CardiAQ MIL No. 4. (Lea, Christy) (Entered:05/04/2016)

05/04/2016 429 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 3 held on 5/4/2016. Testimony of A. Quadriresumes. J. Brent Ratz sworn and testifies. (Court Reporter: Debra Joyce [email protected].)(Attorneys present: various) (Folan, Karen) (Entered:05/05/2016)

05/05/2016 428 Response by Neovasc Inc., Neovasc Tiara Inc. to 425 Brief RegardingNeovasc's Customer Relationships. (Graves, Charles) (Entered: 05/05/2016)

05/05/2016 431 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 4 held on 5/5/2016. Testimony of Brent Ratzcontinues. (Court Reporter: Debra Joyce [email protected].)(Attorneys present: various) (Folan, Karen) (Entered:05/06/2016)

05/05/2016 432 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In connectionwith CardiAQ's Bench Memorandum Regarding Evidence of Neovasc'sCustomer Relationships [ECF No. 425], CardiAQ is directed to file completecopies of Randy Lanes' deposition transcripts by 5/6/2016.(Folan, Karen)(Entered: 05/06/2016)

05/06/2016 430 Supplemental Response by Neovasc Inc., Neovasc Tiara Inc. to 425 BriefRegarding Neovasc's Customer Relationships. (Attachments: # 1 AffidavitDeclaration of Peter Kang in support of Supplemental Response)(Graves,Charles) (Additional attachment(s) added on 5/12/2016: # 2 AffidavitRedacted: Decl. of Peter Kang) (Montes, Mariliz). (Entered: 05/06/2016)

05/06/2016 433 Assented to MOTION to Seal Deposition Transcripts by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, #3 Exhibit 2)(Lea, Christy) (Entered: 05/06/2016)


05/06/2016 435 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 5 held on 5/6/2016. Testimony of Brent Ratzcontinues. (Court Reporter: Lee Marzilli at [email protected].)(Attorneyspresent: various) (Folan, Karen) (Entered: 05/06/2016)

05/06/2016 436 SEALED 9/21/15 deposition transcript of Randy Lane and (Attachments: # 111/1/15 Deposition transcript of Randy Lane) filed by Plaintiff CardiAQ ValveTechnologies, Inc.'s (doc. 433), FILED UNDER SEAL(Flaherty, Elaine)(Entered: 05/06/2016)

05/08/2016 437 BRIEF by CardiAQ Valve Technologies, Inc. to 425 Brief ReplyMemorandum on Customer Information. (Lea, Christy) (Entered: 05/08/2016)

05/09/2016 438 Transcript of Jury Trial Day One (including jury empanelment) held on May2, 2016, before Judge Allison D. Burroughs. The Transcript may be purchasedthrough the Court Reporter, viewed at the public terminal, or viewed through

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PACER after it is released. Court Reporter Name and Contact Information:Debra Joyce and Lee Marzilli at [email protected] Redaction Request due5/30/2016. Redacted Transcript Deadline set for 6/9/2016. Release ofTranscript Restriction set for 8/8/2016. (Scalfani, Deborah) (Entered:05/09/2016)

05/09/2016 439 Transcript of Jury Trial Day Two held on May 3, 2016, before Judge AllisonD. Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Kelly Mortellite and LeeMarzilli at [email protected] Redaction Request due 5/30/2016. RedactedTranscript Deadline set for 6/9/2016. Release of Transcript Restriction set for8/8/2016. (Scalfani, Deborah) (Entered: 05/09/2016)

05/09/2016 440 Transcript of Jury Trial Day Three held on May 4, 2016, before Judge AllisonD. Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Debra Joyce, Kelly Morelliteand Lee Marzilli at [email protected] Redaction Request due 5/30/2016.Redacted Transcript Deadline set for 6/9/2016. Release of TranscriptRestriction set for 8/8/2016. (Scalfani, Deborah) (Entered: 05/09/2016)

05/09/2016 441 Transcript of Jury Trial Day Four held on May 5, 2016, before Judge AllisonD. Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Debra Joyce, Kelly Mortelliteand Lee Marzilli at [email protected] Redaction Request due 5/30/2016.Redacted Transcript Deadline set for 6/9/2016. Release of TranscriptRestriction set for 8/8/2016. (Scalfani, Deborah) (Entered: 05/09/2016)

05/09/2016 442 Transcript of Jury Trial Day Five held on May 6, 2016, before Judge AllisonD. Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Debra Joyce and Lee Marzilliat [email protected] Redaction Request due 5/30/2016. Redacted TranscriptDeadline set for 6/9/2016. Release of Transcript Restriction set for 8/8/2016.(Scalfani, Deborah) (Entered: 05/09/2016)


05/09/2016 444 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 6 held on 5/9/2016. Deposition videos played.Testimony of Joseph Bavaria and Richard Hillstead. (Court Reporter: DebraJoyce)(Attorneys present: various) (Folan, Karen) (Entered: 05/09/2016)

05/10/2016 445 BRIEF by CardiAQ Valve Technologies, Inc. re Impact of Verdict on PatientChoice. (Lea, Christy) (Entered: 05/10/2016)

05/10/2016 446 Transcript of Jury Trial Day Six held on May 9, 2016, before Judge Allison D.Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.

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Court Reporter Name and Contact Information: Kelly Mortellite, Debra Joyceand Lee Marzilli at [email protected] Redaction Request due 5/31/2016.Redacted Transcript Deadline set for 6/10/2016. Release of TranscriptRestriction set for 8/8/2016. (Scalfani, Deborah) (Entered: 05/10/2016)


05/10/2016 448 BRIEF by Neovasc Inc., Neovasc Tiara Inc. Regarding the Testimony of Mr.Glen Rabito. (Graves, Charles) (Entered: 05/10/2016)

05/10/2016 450 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 7 held on 5/10/2016. Juror number 5 excused.Testimony of Richard Hillstead resumes. Rob Michiels sworn and testifies.Video depositions played. (Court Reporter: Kelly Mortellite [email protected].)(Attorneys present: various) (Folan, Karen) (Entered:05/11/2016)

05/11/2016 449 Response by CardiAQ Valve Technologies, Inc. to 448 Brief RegardingTestimony of Mr. Glen Rabito. (Lea, Christy) (Entered: 05/11/2016)

05/11/2016 451 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. On May 4,2016, the day after opening arguments in the ongoing jury trial, PlaintiffCardiAQ filed a Bench Memorandum requesting that "Neovasc be preventedfrom offering any evidence about the work that any of its employees,including Mr. Lane, performed for [its aortic valve] customers." [ECF No.425]. The Bench Memorandum specifically singled out evidence regardingNeovasc employee Randy Lane's work for JenaValve, because Neovasc'sopening argument had made reference to Mr. Lane's work on a JenaValveaortic valve product. [ECF No. 439 (Transcript of Jury Trial Day Two) at68:13−20; 74:5−6; 74:20−22]. Neovasc has filed two briefs in opposition tothe Bench Memorandum [ECF Nos. 428, 430], arguing that it is entitled tooffer evidence of Mr. Lane's work with JenaValve and other aortic valvecustomers as evidence of non−secrecy and independent development.CardiAQ filed a reply on May 8, 2016. [ECF No. 436]. As explained furtherbelow, CardiAQ's request is granted in part. During discovery, Neovasc maderepresentations and took positions that could have reasonably led CardiAQ tobelieve that Neovasc was not planning to present evidence regarding Mr.Lane's work for JenaValve or other aortic valve customers. A year ago, forinstance, in response to a Motion to Compel filed by CardiAQ seekingdiscovery about Neovasc's customers, Neovasc stated that it would not berelying on work for other customers in its defenses. [ECF No. 106 at 7 ("Tojustify its motion, Plaintiff pretends that Neovasc has relied upon work withother customers in its defenses. It has not.")]. Neovasc stated in that same briefthat CardiAQ's discovery request regarding Neovasc's other customers bore"no connection to the claims and defenses in this case." Id. at 1. Neovasc alsoclaimed that it would only rely on Mr. Lane's "prior work at a differentcompany on a valve design that is now in the public domain" as a defense. Id.at 5 (emphasis added).After oral argument on that motion, upon Neovasc'srequest, the Court granted an order that limited discovery to Neovasc's mitral

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valve customers. [ECF Nos. 136, 137]. Neovasc subsequently used that orderto prevent discovery regarding its aortic valve customers, such as JenaValve.[ECF No. 436 (Lane Deposition No. 1) at 65:20−66:14 ("Yeah, so pursuant tothe court order we're not supposed to talk about the details of the customers onthe aortic side."); 71:16−23 ("So pursuant to the court order the court hasordered that the identities of aortic customers shouldn't be disclosed.")]. At ahearing this past October, Neovasc reiterated that it would not be relying onother customers' products as a defense. [ECF No. 271 at 217 ("What we'rerelying on is what was known in the public domain, what was out in thepublic, what was in patent applications, what was known to Neovasc becausethey had their own devices that implemented these features that CVTsupposedly taught Neovasc that they have known all along because it was inour own products, not our customers' products. We never made thatassertion.")]. Neovasc did, however, disclose that it would be relying on Mr.Lane's "knowledge of public disclosures by companies which have designedaortic or mitral valves." [ECF No. 99 (Interrogatory Response No. 7)].Neovasc listed several valve technologies in the public domain that Mr. Lanewas familiar with, and this list included JenaValve. [ECF No. 430−1(Interrogatory Response Nos. 12, 14)]. Given these prior statements andpositions, the Court will limit, but not exclude, Mr. Lane's testimony regardingJenaValve and other aortic valve customers. First, Mr. Lane may testify that hewas generally aware of the JenaValve device from public information, and thatfrom this public information, he learned that the JenaValve device went behindthe leaflets. Likewise, he may testify about other aortic valves that he wasaware of from public information, whether they were Neovasc customers ornot, but his testimony will be limited to information he obtained from publicsources. The Court will require counsel for Neovasc to lay a solid foundationabout the source of Mr. Lane's knowledge before he testifies about anyparticular aspect of the JenaValve device or any other aortic valveproduct−−Neovasc must be able to conclusively demonstrate that anything Mr.Lane testifies about is in the public domain and that he was aware of the publicdomain information at the relevant time. This is necessary to draw ameaningful line between what Mr. Lane knew from public information andwhat he learned from doing work with a Neovasc customer. Second, Mr. Lanemay testify about any work he performed before he joined Neovasc in August2007. Last, Mr. Lane may testify that he was a named inventor on theJenaValve patent, but that his contribution had nothing to do with goingbehind the leaflets−−the fact that he was a named inventor on the JenaValvepatent may only be educed to show that Mr. Lane was aware of the publicinformation in the patent. If Neovasc fails to elicit testimony that Mr. Lane'scontribution to the patent had nothing to do with going behind the leaflets,then the Court may instruct the jury that there is no evidence on the recordfrom which the jury could conclude that Mr. Lane learned about going behindthe leaflets from his earlier work with JenaValve. Any evidence thatJenaValve was a Neovasc customer or that Randy Lane did any work forJenaValve while it was a Neovasc customer is excluded. In addition, Mr. Lanemay not testify about any knowledge concerning aortic valve customers,including JenaValve, that was not acquired by him from the public domain.Lastly, Neovasc may not suggest during direct or cross examination thatCardiAQ failed to fully explore what Mr. Lane knew before he startedworking with CardiAQ.The Court again suggests that a stipulation might bethe safest and easiest way to circumnavigate this issue. Or alternatively, to

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have someone other than Mr. Lane testify about what JenaValve informationwas publicly available. (Folan, Karen) (Entered: 05/11/2016)

05/11/2016 452 Supplemental Proposed Jury Instructions by Neovasc Inc., Neovasc Tiara Inc..(Graves, Charles) (Entered: 05/11/2016)

05/11/2016 453 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 8 held on 5/11/2016. Video deposition of AlexeiMarko.Michael Wagner sworn and testifies. Plaintiff rests. Randy Lane swornand testifies.(Court Reporter: Valerie OHara [email protected].)(Attorneys present: various) (Folan, Karen) (Entered:05/12/2016)

05/12/2016 454 Assented to MOTION to Seal and Impound Exhibit A to Declaration of PeterKang in Support of Neovasc's Supplemental Response to Plaintiff's BenchMemorandum Regarding Evidence of Neovasc's Customer Relationships byNeovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Text of ProposedOrder)(Graves, Charles) (Entered: 05/12/2016)

05/12/2016 455 SEALED Exhibit A to Declaration of Peter Kang in Support of Neovasc'sSupplemental Response to Plaintiff's Bench Memorandum re: Evidence ofNeovasc's Customer Relationships, FILED UNDER SEAL. (Flaherty, Elaine)(Entered: 05/12/2016)

05/12/2016 456 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 9 held on 5/12/2016. Testimony of Randy Laneresumes. Alexei Marko sworn and testifies. Video depositions played. (CourtReporter: Debra Joyce at [email protected].)(Attorneys present: various)(Folan, Karen) (Entered: 05/12/2016)

05/13/2016 457 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 10 held on 5/13/2016. Stephen Little sworn andtestifies. (Court Reporter: Debra Joyce at [email protected].)(Attorneyspresent: various) (Folan, Karen) (Entered: 05/13/2016)


05/14/2016 459 Supplemental Proposed Jury Instructions by CardiAQ Valve Technologies,Inc.. (Lea, Christy) (Entered: 05/14/2016)

05/14/2016 460 Objection to 452 Proposed Jury Instructions by CardiAQ Valve Technologies,Inc. . (Lea, Christy) (Entered: 05/14/2016)

05/15/2016 461 Objection to 459 Proposed Jury Instructions, 460 Objection by Neovasc Inc.,Neovasc Tiara Inc. Objections and Response to CardiAQ's First SupplementalProposed Jury Instructions. (Graves, Charles) (Entered: 05/15/2016)

05/15/2016 462 BRIEF by CardiAQ Valve Technologies, Inc. on Claim Construction andSecond Supplemental Jury Instruction. (Lea, Christy) (Entered: 05/15/2016)

05/15/2016 463 Request for Judicial Notice by Neovasc Inc., Neovasc Tiara Inc..(Attachments: # 1 Exhibit A)(Graves, Charles) (Entered: 05/15/2016)

05/16/2016 464 Transcript of Jury Trial Day Six held on May 9, 2016, before Judge Allison D.Burroughs. The Transcript may be purchased through the Court Reporter,

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viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Debra Joyce, Kelly Mortelliteand Lee Marzilli at [email protected] Redaction Request due 6/6/2016.Redacted Transcript Deadline set for 6/16/2016. Release of TranscriptRestriction set for 8/15/2016. (Scalfani, Deborah) Modified on 5/16/2016 (tocorrect day of trial) (Scalfani, Deborah). (Entered: 05/16/2016)

05/16/2016 465 Transcript of Jury Trial Day Seven held on May 10, 2016, before JudgeAllison D. Burroughs. The Transcript may be purchased through the CourtReporter, viewed at the public terminal, or viewed through PACER after it isreleased. Court Reporter Name and Contact Information: Kelly Mortellite,Valerie O'Hara and Lee Marzilli at [email protected] Redaction Request due6/6/2016. Redacted Transcript Deadline set for 6/16/2016. Release ofTranscript Restriction set for 8/15/2016. (Scalfani, Deborah) (Entered:05/16/2016)

05/16/2016 466 Transcript of Jury Trial Day Eight held on May 11, 2016, before Judge AllisonD. Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Valerie O'Hara, Debra Joyceand Lee Marzilli at [email protected] Redaction Request due 6/6/2016.Redacted Transcript Deadline set for 6/16/2016. Release of TranscriptRestriction set for 8/15/2016. (Scalfani, Deborah) (Entered: 05/16/2016)

05/16/2016 467 Transcript of Jury Trial Day Nine held on May 12, 2016, before Judge AllisonD. Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Debra Joyce, Valerie O'Haraand Lee Marzilli at [email protected] Redaction Request due 6/6/2016.Redacted Transcript Deadline set for 6/16/2016. Release of TranscriptRestriction set for 8/15/2016. (Scalfani, Deborah) (Entered: 05/16/2016)

05/16/2016 468 Transcript of Jury Trial Day Ten held on May 13, 2016, before Judge AllisonD. Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Valerie O'Hara and DebraJoyce at [email protected] Redaction Request due 6/6/2016. RedactedTranscript Deadline set for 6/16/2016. Release of Transcript Restriction set for8/15/2016. (Scalfani, Deborah) (Entered: 05/16/2016)


05/16/2016 470 Objection to 462 Brief by Neovasc Inc., Neovasc Tiara Inc. Response toCardiAQ's Brief and Second Supplemental Proposed Jury Instruction re:Inventorship. (Graves, Charles) (Entered: 05/16/2016)

05/16/2016 471 BRIEF by CardiAQ Valve Technologies, Inc. to 462 Brief (Reply) on ClaimConstruction. (Lea, Christy) (Entered: 05/16/2016)

05/16/2016 472 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 11 held on 5/16/2016. Stephen Little testimony

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resumes. Karl Leinsing sworn and testifies. Video depositions played for jury.(Court Reporter: Valerie OHara at [email protected].)(Attorneys present:various) (Folan, Karen) (Entered: 05/17/2016)

05/17/2016 473 MOTION for Judgment as a Matter of Law on CardiAQ's Claim Under Ch.93A by Neovasc Inc., Neovasc Tiara Inc..(Graves, Charles) (Entered:05/17/2016)

05/17/2016 474 MOTION for Judgment as a Matter of Law on CardiAQ's Duty of HonestyClaim by Neovasc Inc., Neovasc Tiara Inc..(Graves, Charles) (Entered:05/17/2016)

05/17/2016 475 Transcript of Jury Trial Day Eleven held on May 16, 2016, before JudgeAllison D. Burroughs. The Transcript may be purchased through the CourtReporter, viewed at the public terminal, or viewed through PACER after it isreleased. Court Reporter Name and Contact Information: Kelly Mortellite,Valerie O'Hara and Lee Marzilli at [email protected] Redaction Request due6/7/2016. Redacted Transcript Deadline set for 6/17/2016. Release ofTranscript Restriction set for 8/15/2016. (Scalfani, Deborah) (Entered:05/17/2016)


05/17/2016 477 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial 12 held on 5/17/2016. Carla Mulhern sworn andtestifies. Defendant rests. First portion of instructions given to the jury. Juryexcused for the day. Defense files motion for JOML, plaintiff files Rule 50motion. Colloquy re: verdict form and jury charge. (Court Reporter: LeeMarzilli, Debra Joyce, and Kelly Mortellite [email protected].)(Attorneys present: various) (Folan, Karen) (Entered:05/17/2016)

05/17/2016 478 MOTION for Judgment as a Matter of Law by CardiAQ Valve Technologies,Inc..(Lea, Christy) (Entered: 05/17/2016)

05/18/2016 479 Transcript of Jury Trial Day Twelve held on May 17, 2016, before JudgeAllison D. Burroughs. The Transcript may be purchased through the CourtReporter, viewed at the public terminal, or viewed through PACER after it isreleased. Court Reporter Name and Contact Information: Debra Joyce, KellyMortellite and Lee Marzilli at [email protected] Redaction Request due6/8/2016. Redacted Transcript Deadline set for 6/20/2016. Release ofTranscript Restriction set for 8/16/2016. (Scalfani, Deborah) (Entered:05/18/2016)


05/18/2016 481

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Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 13 held on 5/18/2016. Closing arguments by theparties. Jury Charge. Jurors begin deliberations. (Court Reporter: ValerieOHara at [email protected].)(Attorneys present: various) (Folan, Karen)(Entered: 05/19/2016)

05/19/2016 482 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Jury Trial Day 14 completed on 5/19/2016. Jury verdict for theplaintiffs. (Court Reporter: Lee Marzilli at [email protected].)(Attorneyspresent: various) (Folan, Karen) (Entered: 05/19/2016)

05/19/2016 483 JURY VERDICT in favor of plaintiff against defendants. (Folan, Karen)(Entered: 05/19/2016)

05/20/2016 484 All exhibits returned to both parties. (Folan, Karen) (Entered: 05/20/2016)

05/20/2016 485 MOTION for Injunctive Relief Preventing Neovasc from Dissipating its Assetsor for an Attachment of Neovasc's Assets by CardiAQ Valve Technologies,Inc.. (Attachments: # 1 Text of Proposed Order)(Lea, Christy) (Entered:05/20/2016)

05/23/2016 486 Transcript of Jury Trial Day Eleven held on May 16, 2016, before JudgeAllison D. Burroughs. The Transcript may be purchased through the CourtReporter, viewed at the public terminal, or viewed through PACER after it isreleased. Court Reporter Name and Contact Information: Kelly Mortellite,Valerie O'Hara and Lee Marzilli at [email protected] Redaction Request due6/13/2016. Redacted Transcript Deadline set for 6/23/2016. Release ofTranscript Restriction set for 8/22/2016. (Scalfani, Deborah) (Entered:05/23/2016)

05/23/2016 487 Transcript of Jury Trial Day Twelve (Duplicate, see docket entry 479) held onMay 17, 2016, before Judge Allison D. Burroughs. The Transcript may bepurchased through the Court Reporter, viewed at the public terminal, orviewed through PACER after it is released. Court Reporter Name and ContactInformation: Debra Joyce, Kelly Mortellite and Lee Marzilli [email protected] Redaction Request due 6/13/2016. Redacted TranscriptDeadline set for 6/23/2016. Release of Transcript Restriction set for8/22/2016. (Scalfani, Deborah) Modified on 5/23/2016 (Scalfani, Deborah).(Entered: 05/23/2016)

05/23/2016 488 Transcript of Jury Trial Day Thirteen held on May 18, 2016, before JudgeAllison D. Burroughs. The Transcript may be purchased through the CourtReporter, viewed at the public terminal, or viewed through PACER after it isreleased. Court Reporter Name and Contact Information: Valerie O'Hara,Debra Joyce and Lee Marzilli at [email protected] Redaction Request due6/13/2016. Redacted Transcript Deadline set for 6/23/2016. Release ofTranscript Restriction set for 8/22/2016. (Scalfani, Deborah) (Entered:05/23/2016)

05/23/2016 489 Transcript of Jury Trial Day Fourteen held on May 19, 2016, before JudgeAllison D. Burroughs. The Transcript may be purchased through the CourtReporter, viewed at the public terminal, or viewed through PACER after it isreleased. Court Reporter Name and Contact Information: Kelly Mortellite andLee Marzilli at [email protected] Redaction Request due 6/13/2016. RedactedTranscript Deadline set for 6/23/2016. Release of Transcript Restriction set for

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8/22/2016. (Scalfani, Deborah) (Entered: 05/23/2016)


05/24/2016 492 EXCERPT Transcript of Jury Trial Day Two (Plaintiff's Opening Statement)held on May 3, 2016, before Judge Allison D. Burroughs. The Transcript maybe purchased through the Court Reporter, viewed at the public terminal, orviewed through PACER after it is released. Court Reporter Name and ContactInformation: Lee Marzilli at [email protected] Redaction Request due6/14/2016. Redacted Transcript Deadline set for 6/24/2016. Release ofTranscript Restriction set for 8/22/2016. (Scalfani, Deborah) (Entered:05/24/2016)


05/25/2016 494 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Set Deadlinesas to 485 MOTION for Injunctive Relief Preventing Neovasc from Dissipatingits Assets or for an Attachment of Neovasc's Assets.( Responses due by5/27/2016, Replies due by 5/31/2016., Motion Hearing set for 6/3/2016 10:30AM in Courtroom 17 before Judge Allison D. Burroughs.)(Folan, Karen)(Entered: 05/25/2016)

05/27/2016 495 Judge Allison D. Burroughs: MEMORANDUM AND ORDER,ENTERED.granting 473 Motion for Judgment as a Matter of Law. For thereasons stated herein, the Court grants Neovasc's Motion for Judgment as aMatter of Law on CardiAQ's Chapter 93A claim. (Flaherty, Elaine) (Entered:05/27/2016)

05/27/2016 496 Opposition re 485 MOTION for Injunctive Relief Preventing Neovasc fromDissipating its Assets or for an Attachment of Neovasc's Assets filed byNeovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Text of ProposedOrder)(Graves, Charles) (Entered: 05/27/2016)

05/27/2016 497 DECLARATION re 496 Opposition to Motion, by Neovasc Inc., NeovascTiara Inc.. (Graves, Charles) (Entered: 05/27/2016)

05/27/2016 498 STIPULATION re CardiAQ's Motion for an Injunction Preventing Neovascfrom Dissipating its Assets or for an Attachment of Neovasc's Assets byCardiAQ Valve Technologies, Inc.. (Sganga, John) (Entered: 05/27/2016)

05/31/2016 499 ELECTRONIC ENDORSEMENT APPROVING 498 Stipulation filed byCardiAQ Valve Technologies, Inc. MOTION for Injunctive Relief PreventingNeovasc from Dissipating its Assets or for an Attachment of Neovasc's Assets[Doc. No. 485] is terminated as moot. Parties should submit a proposedbriefing schedule for the inventorshiop claim by 6/3/16. (Folan, Karen)(Entered: 05/31/2016)

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05/31/2016 500 ELECTRONIC NOTICE Canceling Hearing scheduled for 6/3/16. (Folan,Karen) (Entered: 05/31/2016)

05/31/2016 501 Opposition re 473 MOTION for Judgment as a Matter of Law on CardiAQ'sClaim Under Ch. 93A filed by CardiAQ Valve Technologies, Inc.. (Sganga,John) (Entered: 05/31/2016)

05/31/2016 502 Joint MOTION to Seal and Impound Materials from Trial by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Text of Proposed Order)(Lea, Christy)(Entered: 05/31/2016)


06/02/2016 504 STIPULATION Regarding Post−Trial Briefing Schedule by Neovasc Inc.,Neovasc Tiara Inc.. (Graves, Charles) (Entered: 06/02/2016)

06/02/2016 505 NOTICE by Neovasc Inc., Neovasc Tiara Inc. re 501 Opposition to Motion inOpposition to Plaintiff's Motion for Reconsideration (Graves, Charles)(Entered: 06/02/2016)

06/06/2016 506 Judge Allison D. Burroughs: ORDER Regarding Post−Trial BriefingSchedule, ENTERED. (Flaherty, Elaine) (Entered: 06/06/2016)

06/06/2016 507 Judge Allison D. Burroughs: ELECTRONIC ORDER, entered. Havingreviewed Plaintiff CardiAQ's opposition to Defendants' Motion for Judgmentas a Matter of Law on CardiAQ's Chapter 93A Claim [ECF No. 501], as wellas Neovasc's response [ECF No. 505], the Court's May 27, 2016 Order [ECFNo. 495] is hereby affirmed. Neovasc has met its burden of showing that itsallegedly unfair or deceptive conduct did not occur primarily and substantiallyin Massachusetts, and it is therefore entitled to judgment as a matter of law onCardiAQ's Chapter 93A claim. In its opposition, CardiAQ argues that theunfair and deceptive conduct occurred primarily and substantially withinMassachusetts because certain deceptive communications were received byCardiAQ in Massachusetts. CardiAQ's opposition relies on cases in which theChapter 93A claims shared the same operative facts as a fraud claim. See e.g.,Pavonix, Inc. v. Barclays Bank PLC, No. CV 13−10348−LTS, 2015 WL9243831 (D. Mass. Nov.25, 2015); Conway v. Licata, 104 F. Supp.3d 104,119 (D. Mass.2015). In these cases, because the allegedly fraudulentstatements were received in Massachusetts, courts found that Massachusettscould be the center of gravity of the unfair and deceptive acts. Here, however,the Court previously granted Neovasc's motion for summary judgment onCardiAQ's fraud count. [ECF No. 417]. As a result, the cases CardiAQ citesare inapposite. Even if certain Neovasc statements were received by CardiAQin Massachusetts, Massachusetts is not the center of gravity of Neovacs'salleged unfair and deceptive acts, given that Neovasc has been found liable forbreach of contract and misappropriation of trade secrets but not fraud. Asstated in the Court's previous order, the acts underlying Neovasc's contractbreach and trade secret misappropriation occurred entirely outside ofMassachusetts. Accordingly, the fact that certain statements made by Neovascwere received by CardiAQ in Massachusetts does not shift the center ofgravity of the allegedly unfair and deceptive conduct toMassachusetts.(Flaherty, Elaine) (Entered: 06/06/2016)

06/06/2016 508

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STIPULATION (Supplemental) re Post− Trial Briefing Schedule by CardiAQValve Technologies, Inc.. (Lea, Christy) (Entered: 06/06/2016)

06/07/2016 509 ELECTRONIC NOTICE Setting Hearing on Motion 478 MOTION forJudgment as a Matter of Law , 474 MOTION for Judgment as a Matter of Lawon CardiAQ's Duty of Honesty Claim : Motion Hearing set for 8/15/201602:00 PM in Courtroom 17 before Judge Allison D. Burroughs. (Folan, Karen)(Entered: 06/07/2016)

06/09/2016 510 ELECTRONIC ENDORSEMENT APPROVING 508 Stipulation filed byCardiAQ Valve Technologies, Inc. (Folan, Karen) (Entered: 06/09/2016)

06/24/2016 511 MOTION for Judgment as a Matter of Law (Renewed) on the Breach of theDuty of Honest Performance for the Purchase Orders by CardiAQ ValveTechnologies, Inc..(Lea, Christy) (Entered: 06/24/2016)

07/01/2016 512 BRIEF by CardiAQ Valve Technologies, Inc. re Inventorship Claim.(Attachments: # 1 Appendix A, # 2 Proposed Findings of Fact andConclusions of Law)(Lea, Christy) (Entered: 07/01/2016)

07/01/2016 513 MOTION for Enhanced Damages by CardiAQ Valve Technologies, Inc..(Lea,Christy) (Entered: 07/01/2016)

07/01/2016 514 MEMORANDUM in Support re 513 MOTION for Enhanced Damages filedby CardiAQ Valve Technologies, Inc.. (Lea, Christy) (Entered: 07/01/2016)

07/01/2016 515 Assented to MOTION to Seal and Impound by CardiAQ Valve Technologies,Inc.. (Attachments: # 1 Exhibit 1 − Proposed Redacted Memorandum ISOMotion for an Injunction, # 2 Exhibit 2 − Proposed Declaration of Todd ISOMotion of Motion for an Injuction, # 3 Text of Proposed Order to the Motionto Seal)(Lea, Christy) (Entered: 07/01/2016)

07/01/2016 516 MOTION for Injunctive Relief by CardiAQ Valve Technologies, Inc..(Attachments: # 1 [Proposed] Injunction)(Lea, Christy) (Entered: 07/01/2016)

07/01/2016 517 DECLARATION re 516 MOTION for Injunctive Relief of R. Michiels byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 A, # 2 B, # 3 C, # 4 D, #5 E, # 6 F)(Lea, Christy) (Entered: 07/01/2016)

07/01/2016 518 DECLARATION re 516 MOTION for Injunctive Relief of M. Speegle byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 G, # 2 H, # 3I)(Speegle, Mark) (Entered: 07/01/2016)

07/01/2016 519 MOTION to Seal Portions of Neovasc's Post−trial Briefs by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Text of Proposed Order)(Graves,Charles) (Entered: 07/01/2016)

07/01/2016 520 MOTION for Judgment as a Matter of Law on CardiAQ's Duty of HonestyClaim by Neovasc Inc., Neovasc Tiara Inc..(Redacted) (Graves, Charles)Modified on 7/11/2016 (Montes, Mariliz). (Entered: 07/01/2016)

07/01/2016 521 MOTION for New Trial on Trade Secret Claims 4−6(Redacted) by NeovascInc., Neovasc Tiara Inc..(Graves, Charles) Modified on 7/11/2016 (Montes,Mariliz). (Entered: 07/01/2016)

07/01/2016 522 MOTION for New Trial on Damages by Neovasc Inc., Neovasc TiaraInc..(Graves, Charles) (Entered: 07/01/2016)

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07/28/2016 529 83 Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered 511Plaintiff's Renewed Motion for Judgment as a Matter of Law and 520Defendants' Renewed Motion for Judgment as a Matter of Law are DENIED.474 Defendants' Motion for Judgment as a Matter of Law and 478 Plaintiff'sMotion for Judgment as a Matter of Law are terminated. (See attached Order)(Montes, Mariliz) (Entered: 07/28/2016)

07/29/2016 530 Opposition re 522 MOTION for New Trial on Damages filed by CardiAQValve Technologies, Inc.. (Lea, Christy) (Entered: 07/29/2016)

07/29/2016 531 Assented to MOTION to Seal Appendix A to Opposition to Motion for a NewTrial on Trade Secret Claims 4−6 by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Text of Proposed Order)(Lea, Christy) (Entered:07/29/2016)

07/29/2016 532 Opposition re 521 MOTION for New Trial on Trade Secret Claims 4−6 filedby CardiAQ Valve Technologies, Inc.. (Attachments: # 1 Appendix A (filedunder seal))(Lea, Christy) (Additional attachment(s) added on 8/5/2016: # 2Appendix A) (Montes, Mariliz). (Entered: 07/29/2016)

07/29/2016 533 NOTICE of Withdrawal of Appearance by Jenna C. Kelleher (Kelleher, Jenna)(Entered: 07/29/2016)

07/29/2016 534 MEMORANDUM in Opposition re 513 MOTION for Enhanced Damagesfiled by Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Entered:07/29/2016)

07/29/2016 535 BRIEF by Neovasc Inc., Neovasc Tiara Inc. to 512 Brief . (Attachments: # 1Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Appendix D, # 5 AppendixE, # 6 Affidavit F)(Graves, Charles) (Entered: 07/29/2016)

07/29/2016 536 MOTION to Seal Portions of Neovasc's Opposition to Injunction Motion andMarko Declaration and Ex. B to Marko Declaration by Neovasc Inc., NeovascTiara Inc.. (Attachments: # 1 Text of Proposed Order)(Graves, Charles)(Entered: 07/29/2016)

07/29/2016 537 MEMORANDUM in Opposition re 516 MOTION for Injunctive Relief filedby Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Additionalattachment(s) added on 8/4/2016: # 1 Unredacted Defendants' Opposition to516 Motion for Permanent Injunction) (Montes, Mariliz). (Entered:07/29/2016)

07/29/2016 538 DECLARATION od Alexei Marko in Support of 537 MEMORANDUM inOpposition to 516 MOTION for Injunctive Relief (Attachments: # 1 ExhibitA, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12Exhibit L)(Graves, Charles) Modified on 8/1/2016 to link it to correct docket(Montes, Mariliz). (Additional attachment(s) added on 8/4/2016: # 13Unredacted Declaration of Alexei Marko in Support of 537 Defendants'Opposition, # 14 Unredacted Exhibit B to Declaration of Alexei Marko in

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Support of 537 Defendants' Opposition) (Montes, Mariliz). (Entered:07/29/2016)

07/29/2016 539 Proposed Document(s) submitted by CardiAQ Valve Technologies, Inc..Document received: CardiAQ's [Proposed] Judgment. (Sganga, John)(Entered: 07/29/2016)



08/09/2016 542 Assented to MOTION to Seal Portions of Reply in Support of Motion for anInjunction and Supporting Documents by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Text of Proposed Order)(Lea, Christy) (Entered:08/09/2016)

08/10/2016 543 ELECTRONIC NOTICE Setting Hearing on Motion 521 MOTION for NewTrial on Trade Secret Claims 4−6, 513 MOTION for Enhanced Damages , 516MOTION for Injunctive Relief , 522 MOTION for New Trial on Damages,526 SEALED MOTION : Motion Hearing set for 8/15/2016 10:00 AM inCourtroom 17 before Judge Allison D. Burroughs. (Folan, Karen) (Entered:08/10/2016)


08/11/2016 545 BRIEF by CardiAQ Valve Technologies, Inc. to 535 Brief, 512 Brief in Replyin Support of its Inventorship Claim. (Attachments: # 1 Appendix B)(Lea,Christy) (Entered: 08/11/2016)

08/11/2016 546 REPLY to Response to 513 MOTION for Enhanced Damages filed byCardiAQ Valve Technologies, Inc.. (Lea, Christy) (Entered: 08/11/2016)

08/11/2016 547 REPLY to Response to 516 MOTION for Injunctive Relief filed by CardiAQValve Technologies, Inc.. (Lea, Christy) (Additional attachment(s) added on8/12/2016: # 1 Unredacted version of Plaintiff's Reply in Support of 516Motion for an Injunction) (Montes, Mariliz). (Entered: 08/11/2016)

08/11/2016 548 DECLARATION re 547 Reply to Response to Motion for an Injunction byCardiAQ Valve Technologies, Inc.. (Lea, Christy) (Additional attachment(s)added on 8/12/2016: # 1 Unredacted version of Supp. Declaration of PatriciaTodd) (Montes, Mariliz). (Entered: 08/11/2016)

08/11/2016 549 DECLARATION re 547 Reply to Response to Motion for an Injunction byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit J)(Horne,Brian) (Entered: 08/11/2016)

08/12/2016 550 MEMORANDUM in Support re 522 MOTION for New Trial on DamagesDefendants Neovasc Inc.'s and Neovasc Tiara Inc.'s Reply Brief in Support ofMotion for a New Trial on Damages filed by Neovasc Inc., Neovasc TiaraInc.. (Graves, Charles) (Entered: 08/12/2016)

08/12/2016 551 Assented to MOTION to Seal and Impound Defendants Neovasc Inc.'s andNeovasc Tiara Inc.'s Reply in Support of its Motion for New Trial on Trade

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Secret Claims 4−6 by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1Text of Proposed Order)(Graves, Charles) (Entered: 08/12/2016)

08/12/2016 552 REPLY in Support OF 521 MOTION for New Trial on Trade Secret Claims4−6 Defendants Neovasc Inc.'s and Neovasc Tiara Inc.'s Reply Brief inSupport of Motion for a New Trial on Trade Secret Claims 4−6 filed byNeovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Additional attachment(s)added on 8/15/2016: # 1 Unredacted Reply Brief in Supp. of Motion for NewTrial on Trade Secret Claims 4−6) (Montes, Mariliz). Modified on 8/15/2016to correct title of pleading (Montes, Mariliz). (Entered: 08/12/2016)

08/12/2016 553 Objection to 512 Brief by Neovasc Inc., Neovasc Tiara Inc. DefendantsNeovasc Inc.'s and Neovasc Tiara Inc.'s Objections to Plaintiff CardiAQ ValveTechnologies, Inc.'s Proposed Findings of Fact and Conclusions of Law.(Graves, Charles) (Entered: 08/12/2016)

08/12/2016 554 Objection to 539 Proposed Document(s) submitted by Neovasc Inc., NeovascTiara Inc. Defendants Neovasc Inc.'s and Neovasc Tiara Inc.'s Objections toPlaintiff CardiAQ Valve Technologies, Inc.'s Proposed Judgment. (Graves,Charles) (Entered: 08/12/2016)

08/12/2016 555 ELECTRONIC NOTICE Resetting Hearing on Motion 521 MOTION for NewTrial on Trade Secret Claims 4−6, 513 MOTION for Enhanced Damages , 516MOTION for Injunctive Relief , 522 MOTION for New Trial on Damages,526 SEALED MOTION : Motion Hearing set for 8/15/2016 09:00 AM inCourtroom 17 before Judge Allison D. Burroughs. NOTICE IS FOR TIMECHANGE ONLY.(Folan, Karen) (Entered: 08/12/2016)


08/15/2016 557 NOTICE by CardiAQ Valve Technologies, Inc. of Lodging PresentationSlides Presented at the August 15, 2016 Motion Hearing (Attachments: # 1Exhibit 1)(Lea, Christy) (Entered: 08/15/2016)

08/15/2016 570 Electronic Clerk's Notes for proceedings held before Judge Allison D.Burroughs: Motion Hearing held on 8/15/2016. Oral arguments by the parties.Court takes matter under advisement. (Court Reporter: Carol Scott [email protected].)(Attorneys present: various) (Folan, Karen) (Entered:09/22/2016)

08/16/2016 558 NOTICE by Neovasc Inc., Neovasc Tiara Inc. of Lodging Inventorship SlidesPresented at the August 15, 2016 Motion Hearing (Attachments: # 1 ExhibitA)(Graves, Charles) (Entered: 08/16/2016)

08/25/2016 559 Transcript of Motion Hearing held on August 20, 2015, before Judge AllisonD. Burroughs. The Transcript may be purchased through the Court Reporter,viewed at the public terminal, or viewed through PACER after it is released.Court Reporter Name and Contact Information: Carol Scott [email protected] Redaction Request due 9/15/2016. RedactedTranscript Deadline set for 9/26/2016. Release of Transcript Restriction set for11/23/2016. (Scalfani, Deborah) (Entered: 08/25/2016)

08/25/2016 560 NOTICE is hereby given that an official transcript of a proceeding has beenfiled by the court reporter in the above−captioned matter. Counsel are referred

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to the Court's Transcript Redaction Policy, available on the court website athttp://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah)(Entered: 08/25/2016)

09/01/2016 561 Assented to MOTION to Seal Supplemental Brief ISO Motion for anInjunction and Motion for Enhanced Damages and Supporting Documents byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Text of ProposedOrder)(Lea, Christy) (Entered: 09/01/2016)

09/01/2016 562 Supplemental MEMORANDUM in Support re 516 MOTION for InjunctiveRelief , 513 MOTION for Enhanced Damages filed by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Appendix)(Lea, Christy) (Entered:09/01/2016)

09/01/2016 563 DECLARATION re 516 MOTION for Injunctive Relief , 513 MOTION forEnhanced Damages by CardiAQ Valve Technologies, Inc.. (Lea, Christy)(Additional attachment(s) added on 9/15/2016: # 1 Declaration of RyanLindsey (Unredacted)) (Montes, Mariliz). (Entered: 09/01/2016)

09/01/2016 564 BRIEF by CardiAQ Valve Technologies, Inc. to 512 Brief Supplemental ISOof its Inventorship Claim. (Lea, Christy) (Additional attachment(s) added on9/15/2016: # 1 Supplemental Brief in Support (Unredacted)) (Montes,Mariliz). (Entered: 09/01/2016)

09/07/2016 565 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 561Assented−to Motion to Seal and Impound Portions of Plaintiff, CardiAQValve Technologies, Inc's Supplemental Brief in Support of its Motion for AnInjunction and Motion for Enhanced Damages and Supporting Documents(Montes, Mariliz) (Entered: 09/07/2016)

09/08/2016 566 MOTION to Seal Neovasc's Response to CardiAQ's Supplemental Brief reMotions for an Injunction and Enhanced Damages by Neovasc Inc., NeovascTiara Inc.. (Attachments: # 1 Text of Proposed Order)(Graves, Charles)(Entered: 09/08/2016)

09/08/2016 567 RESPONSE by Neovasc Inc., Neovasc Tiara Inc. to 516 Plaintiff's MOTIONfor Injunctive Relief , 513 MOTION for Enhanced Damages . (Graves,Charles) Modified on 9/15/2016 to correction title of pleading(Montes,Mariliz). (Additional attachment(s) added on 9/15/2016: # 1 (SEALED)Defendant's Response to CardiAQ's Supp. Brief re. Motion for Injunction andEnhanced Damages) (Montes, Mariliz). (Entered: 09/08/2016)

09/08/2016 568 BRIEF by Neovasc Inc., Neovasc Tiara Inc. to 512 Brief in Response toCardiAQ's Supplemental Brief re Inventorship Claim. (Attachments: # 1Appendix G, # 2 Appendix H)(Graves, Charles) (Entered: 09/08/2016)

09/08/2016 569 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 566MOTION to Seal Neovasc's Response to CardiAQ's Supplemental Brief re.Motions for an Injunction and Enhanced Damages (Montes, Mariliz) (Entered:09/08/2016)

10/19/2016 571 MOTION for Leave to Appear Pro Hac Vice for admission of John E. NilssonFiling fee: $ 100, receipt number 0101−6340256 by Neovasc Inc., NeovascTiara Inc.. (Attachments: # 1 Exhibit Rule 85.5.3 Certification of John E.Nilsson, Esq. in Support of Motion for Admission Pro Hac Vice)(Chinitz,

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Michael) (Entered: 10/19/2016)

10/19/2016 572 MOTION for Leave to Appear Pro Hac Vice for admission of Matthew M.Wolf Filing fee: $ 100, receipt number 0101−6340290 by Neovasc Inc.,Neovasc Tiara Inc.. (Attachments: # 1 Exhibit Rule 85.5.3 Certification ofMatthew M. Wolf, Esq. in Support of Motion for Admission Pro HacVice)(Chinitz, Michael) (Entered: 10/19/2016)

10/19/2016 573 MOTION for Leave to Appear Pro Hac Vice for admission of James A. KaiserFiling fee: $ 100, receipt number 0101−6340308 by Neovasc Inc., NeovascTiara Inc.. (Attachments: # 1 Exhibit Rule 85.5.3 Certification of James A.Kaiser, Esq. in Support of Motion for Admission Pro Hac Vice)(Chinitz,Michael) (Entered: 10/19/2016)

10/19/2016 574 MEMORANDUM in Support re 573 MOTION for Leave to Appear Pro HacVice for admission of James A. Kaiser Filing fee: $ 100, receipt number0101−6340308, 572 MOTION for Leave to Appear Pro Hac Vice foradmission of Matthew M. Wolf Filing fee: $ 100, receipt number0101−6340290, 571 MOTION for Leave to Appear Pro Hac Vice foradmission of John E. Nilsson Filing fee: $ 100, receipt number 0101−6340256filed by Neovasc Inc., Neovasc Tiara Inc.. (Chinitz, Michael) (Entered:10/19/2016)

10/19/2016 575 DECLARATION re 574 Memorandum in Support of Motion,, by NeovascInc., Neovasc Tiara Inc.. (Attachments: # 1 Exhibit)(Chinitz, Michael)(Entered: 10/19/2016)

10/19/2016 576 NOTICE by CardiAQ Valve Technologies, Inc. re 573 MOTION for Leave toAppear Pro Hac Vice for admission of James A. Kaiser Filing fee: $ 100,receipt number 0101−6340308, 572 MOTION for Leave to Appear Pro HacVice for admission of Matthew M. Wolf Filing fee: $ 100, receipt number0101−6340290, 571 MOTION for Leave to Appear Pro Hac Vice foradmission of John E. Nilsson Filing fee: $ 100, receipt number 0101−6340256re CardiAQ's Intent to Oppose (Lea, Christy) (Entered: 10/19/2016)

10/24/2016 577 Assented to MOTION to Seal Portions of Opposition to Motions forAdmission Pro Hac Vice of John Nilsson, Matthew Wolf and James Kaiser byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Text of ProposedOrder)(Lea, Christy) (Entered: 10/24/2016)

10/24/2016 578 Opposition re 572 MOTION for Leave to Appear Pro Hac Vice for admissionof Matthew M. Wolf Filing fee: $ 100, receipt number 0101−6340290, 571MOTION for Leave to Appear Pro Hac Vice for admission of John E. NilssonFiling fee: $ 100, receipt number 0101−6340256, 573 MOTION for Leave toAppear Pro Hac Vice for admission of James A. Kaiser Filing fee: $ 100,receipt number 0101−6340308 filed by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Lea, Christy) (Additionalattachment(s) added on 10/26/2016: # 8 Sealed CardiAQ's Opposition to 572MOTION for Leave to Appear Pro Hac Vice for admission of Matthew M.Wolf) (Montes, Mariliz). (Entered: 10/24/2016)


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10/28/2016 580 MOTION for Leave to File Reply in Response to CardiAQ's Opposition toNeovasc's Motions for Admission Pro Hac Vice of Arnold & Porter LLPAttorneys by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Exhibit[Proposed] Reply to CardiAQ's Opposition to Motions for Admission Pro HacVice of Arnold & Porter LLP Attorneys for Defendants Neovasc Inc. andNeovasc Tiara Inc.)(Chinitz, Michael) (Entered: 10/28/2016)

10/28/2016 581 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 580Motion for Leave to File Reply Brief in Response to CardiAQ's Opposition toMotions for Admission Pro Hac Vice of Arnold & Porter LLP Attorneys ;Counsel using the Electronic Case Filing System should now file thedocument for which leave to file has been granted in accordance with theCM/ECF Administrative Procedures. Counsel must include − Leave to filegranted on (date of order)− in the caption of the document. (Montes, Mariliz)(Entered: 10/28/2016)

10/28/2016 582 REPLY to Response to 573 MOTION for Leave to Appear Pro Hac Vice foradmission of James A. Kaiser Filing fee: $ 100, receipt number0101−6340308, 572 MOTION for Leave to Appear Pro Hac Vice foradmission of Matthew M. Wolf Filing fee: $ 100, receipt number0101−6340290, 571 MOTION for Leave to Appear Pro Hac Vice foradmission of John E. Nilsson Filing fee: $ 100, receipt number 0101−6340256filed by Neovasc Inc., Neovasc Tiara Inc.. (Chinitz, Michael) (Entered:10/28/2016)

10/31/2016 583 90 Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered.

For the reasons stated herein:

1. CardiAQs motion for enhanced damages [ECF No. 513] is GRANTED INPART and Neovasc is ordered to pay $21,000,000 in enhanced damages;

2. CardiAQs motion for injunctive relief [ECF No. 516] is GRANTED INPART and the Court orders that:

a. Within 7 days of this Order, Neovasc must destroy all information thatCardiAQ sent to Neovasc between June 2009 and April 2010, including emailsand attachments thereto, CAD files, engineering drawings, animal test results,design history information, as well as any work product that Neovascgenerated that incorporates information contained in the foregoing, includingthe contents of any physical or electronic file that Neovasc may keep regardingCardiAQ, including the electronic CardiAQ folder referenced during trial (seeTr. Day 9 (Marko), 105:1−20; Ex. 1486 at 106:14−19). Neovasc must certifyin writing that it has complied with this paragraph of the Order.

b. Within 7 days of this Order, Neovasc must return to CardiAQ any CardiAQprototypes, or portions thereof, that CardiAQ provided to Neovasc and thatNeovasc still has in its possession, custody, or control, including but notlimited to prototypes fabricated by Neovasc to test any CardiAQ prototypedesign.

3. Neovascs motion for a new trial on damages [ECF No. 522] is DENIED;

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4. Neovascs motion for a new trial on trade secrets 4−6 [ECF No. 521] isDENIED;

5. CardiAQ has shown by clear and convincing evidence that Dr. Quadri andMr. Ratz contributed to the conception of U.S. Patent No. 8,579,964 and theCourt therefore orders that Dr. Quadri and Mr. Ratz be added as inventors ofU.S. Patent No. 8,579,964; and

6. Neovascs motions for the Pro Hac Vice admission of new attorneys [ECFNos. 571−573] are DENIED as MOOT.

So Ordered. (Montes, Mariliz) (Entered: 10/31/2016)

11/03/2016 584 MOTION to Modify the Court's Order re Destruction of ESI 583 by NeovascInc., Neovasc Tiara Inc.. (Attachments: # 1 Text of Proposed Order)(Graves,Charles) (Entered: 11/03/2016)

11/03/2016 585 DECLARATION re 584 MOTION to Modify the Court's Order re Destructionof ESI 583 by Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Entered:11/03/2016)

11/07/2016 586 Assented to MOTION to Seal Exhibit 1 to Opposition to Neovasc's Motion toModify the Court's Order by CardiAQ Valve Technologies, Inc..(Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Lea, Christy)(Entered: 11/07/2016)

11/07/2016 587 Opposition re 584 MOTION to Modify the Court's Order re Destruction ofESI 583 filed by CardiAQ Valve Technologies, Inc.. (Attachments: # 1 Exhibit1)(Lea, Christy) (Additional attachment(s) added on 11/21/2016: # 2 Exhibit 1(filed under seal)) (Montes, Mariliz). (Entered: 11/07/2016)

11/07/2016 588 NOTICE by Neovasc Inc., Neovasc Tiara Inc. Certifying Compliance withParagraph 2.a. of the Court's October 31, 2016 Order re Destruction of ESI583 (Graves, Charles) (Entered: 11/07/2016)


11/08/2016 590 MOTION for Leave to File Reply in Response to Opposition to Motion toModify Court's Order 583 by Neovasc Inc., Neovasc Tiara Inc.. (Attachments:# 1 Exhibit 1, # 2 Text of Proposed Order)(Graves, Charles) (Entered:11/08/2016)

11/08/2016 591 Proposed Document(s) submitted by CardiAQ Valve Technologies, Inc..Document received: Revised [Proposed] Judgment. (Lea, Christy) (Entered:11/08/2016)

11/08/2016 592 NOTICE by Neovasc Inc., Neovasc Tiara Inc. re 591 Proposed Document(s)submitted of Intent to Object to CardiAQ's Revised [Proposed] Judgment(Graves, Charles) (Entered: 11/08/2016)

11/08/2016 593 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 590Motion for Leave to File Document ; Counsel using the Electronic Case FilingSystem should now file the document for which leave to file has been grantedin accordance with the CM/ECF Administrative Procedures. Counsel must

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include − Leave to file granted on (date of order)− in the caption of thedocument. (Folan, Karen) (Entered: 11/08/2016)

11/08/2016 594 REPLY to Response to 584 MOTION to Modify the Court's Order reDestruction of ESI 583 filed by Neovasc Inc., Neovasc Tiara Inc.. (Graves,Charles) (Entered: 11/08/2016)

11/11/2016 595 Objection to 591 Proposed Document(s) submitted by Neovasc Inc., NeovascTiara Inc. re CardiAQ's Revised Proposed Judgment. (Graves, Charles)(Entered: 11/11/2016)

11/14/2016 596 Judge Allison D. Burroughs: ORDER entered granting 584 Defendants'Motion to Modify the Court's Order Regarding Destruction of ElectronicallyStore Information. (Montes, Mariliz) (Entered: 11/14/2016)

11/14/2016 597 Response by CardiAQ Valve Technologies, Inc. to 595 Objection toCardiAQ's Revised [Proposed] Judgment. (Lea, Christy) (Entered:11/14/2016)

11/21/2016 598 130 Judge Allison D. Burroughs: ORDER entered. JUDGMENT (Montes, Mariliz)(Entered: 11/21/2016)

11/22/2016 599 Assented to MOTION to Seal and Impound Defendants Neovasc Inc.'s andNeovasc Tiara Inc.'s Motion to Stay Judgment Pending Appeal and SupportingDocuments by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Text ofProposed Order [Proposed] Order of Impoundment)(Graves, Charles)(Entered: 11/22/2016)

11/22/2016 600 MOTION to Stay Judgment Pending Appeal by Neovasc Inc., Neovasc TiaraInc.. (Attachments: # 1 Text of Proposed Order [Proposed] Order GrantingDefendants Neovasc Inc.'s and Neovasc Tiara Inc.'s Motion to Stay JudgmentPending Appeal)(Graves, Charles) (Additional attachment(s) added on11/22/2016: # 2 Unredacted Motion to Stay Judgment Pending Appeal)(Montes, Mariliz). (Entered: 11/22/2016)

11/22/2016 601 DECLARATION of Alexei Marko in Support of Defendants Neovasc Inc.'sand Neovasc Tiara Inc's Motion to Stay the Judgment Under Fed. R. Civ. P.62(d) by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Exhibit A(Subject to Motion to Seal and Impound))(Graves, Charles) (Additionalattachment(s) added on 11/22/2016: # 2 Unredacted Declaration of AlexeiMarko, # 3 Exhibit A Unredacted) (Montes, Mariliz). (Entered: 11/22/2016)

11/22/2016 602 DECLARATION of Chris Clark in Support of Defendants Neovasc Inc.'s andNeovasc Tiara Inc.'s Motion to Stay the Judgment Under Fed. R. Civ. P. 62(d)by Neovasc Inc., Neovasc Tiara Inc.. (Attachments: # 1 Exhibit A, # 2 ExhibitB)(Graves, Charles) (Additional attachment(s) added on 11/22/2016: # 3Unredacted Declaration of Chris Clark) (Montes, Mariliz). (Entered:11/22/2016)

11/22/2016 603 DECLARATION of Vicki Bebeau in Support of Defendants Neovasc Inc.'sand Neovasc Tiara Inc.'s Motion to Stay the Judgment Under Fed. R. Civ. P.62(d) by Neovasc Inc., Neovasc Tiara Inc.. (Graves, Charles) (Additionalattachment(s) added on 11/22/2016: # 1 Unredacted Declaration of VickiBebeau) (Montes, Mariliz). (Entered: 11/22/2016)

11/22/2016 604

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DECLARATION in Support of Defendants Neovasc Inc.'s and Neovasc TiaraInc.'s Motion to Stay the Judgment Under Fed. R. Civ. P. 62(d) (Subject toMotion to Seal and Impound) by Neovasc Inc., Neovasc Tiara Inc.. (Graves,Charles) (Additional attachment(s) added on 11/22/2016: # 1 UnredactedDeclaration of George Gionis) (Montes, Mariliz). (Entered: 11/22/2016)

11/22/2016 605 DECLARATION in Support of Defendants Neovasc Inc.'s and Neovasc TiaraInc.'s Motion to Stay the Judgment Under Fed. R. Civ. P. 62(d) (Subject toMotion to Seal and Impound) by Neovasc Inc., Neovasc Tiara Inc.. (Graves,Charles) (Additional attachment(s) added on 11/22/2016: # 1 SealedDeclaration of Bryan Giraudo) (Montes, Mariliz). (Entered: 11/22/2016)

11/22/2016 606 MOTION to Stay /Preserve Status Quo Pending Disposition of Defendants'Motion to Stay Judgment Pending Appeal by Neovasc Inc., Neovasc TiaraInc.. (Attachments: # 1 Text of Proposed Order [Proposed] Order GrantingDefendants Neovasc Inc.'s and Neovasc Tiara Inc.'s Motion to Preserve StatusQuo)(Graves, Charles) (Entered: 11/22/2016)


11/23/2016 608 ELECTRONIC NOTICE of Hearing. Telephone Conference set for11/23/2016 10:00 AM in Courtroom 17 before Judge Allison D. Burroughs.Parties can call in to 888−363−4734, access code 6426345.(Folan, Karen)(Entered: 11/23/2016)

11/23/2016 609 NOTICE Resetting a Hearing. Telephone Conference reset for 11/23/201611:30 AM in Courtroom 17 before Judge Allison D. Burroughs. NOTICE ISFOR TIME CHANGE ONLY. (Folan, Karen) (Entered: 11/23/2016)

11/23/2016 610 BRIEF by Neovasc Inc., Neovasc Tiara Inc. to 598 Judgment re CardiAQ'sRequest for Prejudgment Interest. (Graves, Charles) (Entered: 11/23/2016)

11/28/2016 611 Assented to MOTION to Seal Portions of CardiAQ's Opposition to Motion toStay and Motion for Reconsideration and Supporting Papers by CardiAQValve Technologies, Inc.. (Attachments: # 1 Text of Proposed Order)(Lea,Christy) (Entered: 11/28/2016)

11/28/2016 612 MOTION for Reconsideration of Denial of Injunction (redacted version) byCardiAQ Valve Technologies, Inc..(Lea, Christy) (Additional attachment(s)added on 11/30/2016: # 1 Unredacted version of Motion for Reconsideration)(Montes, Mariliz). (Entered: 11/28/2016)

11/28/2016 613 MOTION for Reconsideration of Denial of Injunction Against Neovasc'sProsecution of Related Patent Applications by CardiAQ Valve Technologies,Inc..(Lea, Christy) (Entered: 11/28/2016)

11/28/2016 614 Assented to MOTION for Leave to File Excess Pages re Brief In Opposition toNeovascs Motion to Stay Judgment Pending Appeal and in support ofCardiAQs Motion For Reconsideration of Denial of Injunction by CardiAQValve Technologies, Inc..(Lea, Christy) (Entered: 11/28/2016)

11/28/2016 615 Opposition re 600 MOTION to Stay Judgment Pending Appeal and in supportof CardiAQs Motion For Reconsideration of Denial of Injunction filed byCardiAQ Valve Technologies, Inc.. (Attachments: # 1 Appendix A, # 2Appendix B, # 3 Text of Proposed Order)(Lea, Christy) (Additional

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attachment(s) added on 11/30/2016: # 4 Unredacted version of Opposition toMotion to Stay) (Montes, Mariliz). (Entered: 11/28/2016)

11/28/2016 616 DECLARATION re 615 Opposition to Motion, and in support of CardiAQsMotion For Reconsideration of Denial of Injunction by CardiAQ ValveTechnologies, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, #4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7 (filed under seal))(Lea,Christy) (Additional attachment(s) added on 11/30/2016: # 8 Exhibit 7 (filedunder seal)) (Montes, Mariliz). (Entered: 11/28/2016)

11/28/2016 617 NOTICE by CardiAQ Valve Technologies, Inc. of Foreign Authority(Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7, # 8Attachment 8)(Lea, Christy) (Entered: 11/28/2016)


11/29/2016 619 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 614Motion for Leave to File Excess Pages ; Counsel using the Electronic CaseFiling System should now file the document for which leave to file has beengranted in accordance with the CM/ECF Administrative Procedures. Counselmust include − Leave to file granted on (date of order)− in the caption of thedocument. (Folan, Karen) (Entered: 11/29/2016)

11/30/2016 620 NOTICE OF APPEAL by Neovasc Inc., Neovasc Tiara Inc. Filing fee: $ 505,receipt number 0101−6394643 Fee Status: Not Exempt. NOTICE TOCOUNSEL: A Transcript Report/Order Form, which can be downloaded fromthe First Circuit Court of Appeals web site at http://www.ca1.uscourts.govMUST be completed and submitted to the Court of Appeals. Counsel shallregister for a First Circuit CM/ECF Appellate Filer Account athttp://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the FirstCircuit requirements for electronic filing by visiting the CM/ECFInformation section at http://www.ca1.uscourts.gov/cmecf. US DistrictCourt Clerk to deliver official record to Court of Appeals by 12/20/2016.(Graves, Charles) (Entered: 11/30/2016)

12/01/2016 621 135 NOTICE OF APPEAL to the Federal Circuit as to 418 Memorandum &ORDER, Terminate Motions, 529 Order on Motion for Judgment as a Matterof Law Order on Sealed Motion, 598 Judgment, 583 Order on Motion forMiscellaneous Relief Order on Motion for Injuctive Relief Order on Motionfor New Trial Order on Motion for Leave to Appear by Neovasc Inc., NeovascTiara Inc. Filing fee: $ 505, receipt number 0101−6394643 Fee Status: NotExempt US District Court Clerk to deliver official record to Court of Appealsby 12/21/2016. (Paine, Matthew) (Entered: 12/01/2016)

12/01/2016 622 Notice of correction to docket made by Court staff. Correction: Docket Entry619 Notice of Appeal to the Federal Circuit Corrected Because: CounselGraves Filed the Notice of Appeal Under the Wrong Event in CM/ECF. TheNotice of Appeal Was Re−Docketed as ECF No. 621, Appeal to the FederalCircuit Court of Appeals. (Paine, Matthew) (Entered: 12/01/2016)

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Plaintiff,

v. NEOVASC INC. and NEOVASC TIARA INC.,

Defendants.

* * * * * * * * * * * *


OMNIBUS MEMORANDUM AND ORDER

RESOLVING MOTIONS TO EXCLUDE AND MOTIONS IN LIMINE

April 25, 2016 BURROUGHS, D.J. Plaintiff CardiAQ Valve Technologies, Inc. (“CardiAQ”) and Defendants Neovasc Inc.

and Neovasc Tiara Inc. (collectively “Neovasc”) have filed several motions to exclude testimony

and motions in limine. [ECF Nos. 340, 344, 345, 349, 351, 352, 354, 358]. On April 11, 2016,

the parties appeared at a pre-trial conference and supplemented their briefing with oral argument.

As previewed at the conference and explained further below, the court now rules as follows:

I. CARDIAQ’S MOTIONS

a. CardiAQ’s Motion in Limine No. 1 to Exclude any Exhibit or Other Evidence Using Neovasc’s “Public Doman” Production Prefix [ECF No. 345]

As discussed at the pre-trial conference, trial exhibits may not bear the

“PUBLICDOMAIN” production prefix. This prefix is unduly prejudicial given the issues in this

case. The parties do not need to remove the “CONFIDENTIAL” or “ATTORNEY’S EYES

ONLY” production prefix from trial exhibits given the minimal prejudice, the work it would


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2

require to remove that information from every trial exhibit, and the limiting instruction that will

be given to the jury. To the extent either party is particularly concerned with the

“CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” production prefix being included on a

specific trial exhibit, however, the opposing counsel should be notified.

b. CardiAQ’s Motion in Limine No. 2 to Exclude Evidence or Argument Regarding the Sufficiency of CardiAQ’s Revised Disclosure of Trade Secrets [ECF No. 349]

During the pre-trial conference, the parties were generally in agreement regarding Motion

in Limine No. 2. During discovery, CardiAQ disclosed a list of its alleged trade secrets, and at

trial, Neovasc may challenge whether these are in fact trade secrets and whether they actually

match what CardiAQ possessed in 2009-2010. Neovasc can contest, question and challenge the

accuracy of CardiAQ’s written list of alleged trade secret claims. The process through which the

list came about—during discovery and following motion practice—is irrelevant. Neovasc can

establish that CardiAQ created the list after the litigation began, but otherwise, any evidence

regarding the discovery dispute and whether the list fulfilled CardiAQ’s discovery obligations is

excluded.

c. CardiAQ’s Motion in Limine No. 3 to Exclude any Argument or Evidence Regarding the Safety of the CardiAQ TMVI Device [ECF No. 351]

As discussed at the pre-trial conference, this issue will largely be resolved on a case-by-

case basis at trial. Generally, the Court will not allow Dr. Little to opine about the overall safety

of CardiAQ’s device, because such testimony is irrelevant and unduly prejudicial. Dr. Little may

only discuss the safety of CardiAQ’s device as it relates to individual patient outcomes and only

to the extent it is directly relevant to the functioning of the anchoring mechanism at issue in this

case.


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d. CardiAQ’s Motion in Limine No. 4 to Preclude Neovasc From Offering Any Evidence or Argument Regarding CardiAQ’s Request for Injunctive Relief or the Financial Impact of Any Damages Award [ECF No. 352]

As discussed at the pre-trial conference, any evidence and testimony concerning

CardiAQ’s request for injunctive relief will be excluded at trial. Because the jury will not decide

whether to impose an injunction, testimony and evidence regarding an injunction, and its

potential impacts, are irrelevant and inadmissible at trial.1

In addition, Neovasc may not present any evidence about its ability to pay a damages

award or the impact of any damages award. Typically, “the financial standing of the defendant is

inadmissible as evidence in determining the amount of compensatory damages to be awarded.”

Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977). Neovasc contends that this is a

special case—that because CardiAQ is seeking a “reasonable royalty” measure of damages, its

financial condition is relevant to the royalty it would have been willing to pay during a

hypothetical negotiation. “A comprehensive (but unprioritized and often overlapping) list of

relevant factors for a reasonable royalty calculation appears in Georgia–Pacific Corp. v. United

States Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970).” Trustees of Boston Univ. v.

Everlight Elecs. Co., No. CV 12-11935-PBS, 2015 WL 6408118, at *1 (D. Mass. Oct. 23, 2015)

(quoting ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 869 (Fed. Cir. 2010)). The parties’

financial condition is not one of the fifteen factors listed in Georgia-Pacific Corp. Nonetheless,

Neovasc cites two non-binding decisions that allowed the defendant’s financial condition to be

taken into account for calculating a reasonable royalty. See Innovention Toys, LLC v. MGA

Entm’t Inc., No. 01-6510, 2012 U.S. Dist. LEXIS 156733, at *12 (E.D. La. Nov. 1, 2012);

Century Wrecker Corp. v. E.R. Buske Mfg. Co., 898 F. Supp. 1334, 1338 (N.D. Iowa 1995), on

1 Neovasc did not oppose this part of CardiAQ’s motion. [ECF No. 392 at 1 n.1].


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reconsideration in part (Sept. 29, 1995). The Court is not persuaded by either case. In

Innovention Toys, plaintiff requested that defendant’s financial condition be admissible, only

after the defendant had “put their wealth and size at issue by arguing that Plaintiff [was] too

small to compete.” 2012 U.S. Dist. LEXIS 156733, at *10. And in Century Wrecker Corp.,

though evidence of defendant’s financial condition was allowed, it was “entitled to very little

weight.” 898 F. Supp. at 1338. The Court finds that the relevance of Neovasc’s financial

condition, which even under Neovasc’s theory would be one of many factors considered to

compute the reasonable royalty, is outweighed by the potential danger that the jury could award

damages unduly based on Neovasc’s ability to pay. See C & C Jewelry Mfg., Inc. v. West, No.

C09-01303 JF HRL, 2011 WL 2559638, at *1 (N.D. Cal. June 28, 2011) (finding that plaintiff’s

overall profitability, including revenues derived from non-accused products, was irrelevant to the

determination of a reasonable royalty).

Neovasc’s request that evidence of its financial condition be admitted for purposes of

determining any punitive damages is similarly denied. Neovasc cites two non-binding cases,

arising under different statutes and contexts. It has not identified a single case in which the

parties’ financial condition was admitted for purposes of determining whether (1) double or

treble damages should be awarded under Mass. Gen. L. ch. 93A or (2) double damages should be

awarded under Mass. Gen. L. ch. 93, § 42, which are the punitive damages sought by CardiAQ.

The language of the statutes, and case law interpreting the statutes, does not support admitting

the parties’ financial status. See, e.g., Haddad Motor Grp., Inc. v. Karp, Ackerman, Skabowski &

Hogan, P.C., 603 F.3d 1, 4 n.3 (1st Cir. 2010) (“[Chapter 93A] permits the award of double or

treble actual damages at the judge’s discretion for ‘willful or knowing violation[s].’”); Mass.


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Gen. L. ch. 93, § 42 (“Whether or not the case is tried by a jury, the court, in its discretion, may

increase the damages up to double the amount found.”).

II. NEOVASC’S MOTIONS

a. Neovasc’s Motion to Exclude Purported Expert Testimony of CardiAQ’s Brent Ratz [ECF No. 340]

Neovasc has moved to exclude the expert testimony of Brent Ratz (“Mr. Ratz”), who is a

co-founder of CardiAQ and will also testify as a fact witness. As further explained at the pretrial

conference, Mr. Ratz may testify as an expert, with some limitations. He qualifies as an expert in

transcatheter mitral valve replacement devices, and CardiAQ has made the required disclosures

under Fed. R. Civ. P. 26(a)(2)(C). See Ji v. Bose Corp., 538 F. Supp. 2d 354, 359 (D. Mass.

2008) (“[S]ufficient experience in a relevant field can qualify a person as an expert witness and

that expertise is unaffected by her interest in this case.”). Mr. Ratz, who was not retained or

specifically employed in connection with the litigation, was not required to submit an expert

report under Fed. R. Civ. P. 26(a)(2)(B). See Downey v. Bob’s Disc. Furniture Holdings, Inc.,

633 F.3d 1, 7 (1st Cir. 2011) (“[A]s long as an expert was not retained or specially employed in

connection with the litigation, and his opinion about causation is premised on personal

knowledge and observations . . . no report is required.”). As described at the pretrial conference,

Mr. Ratz may not testify as to certain issues identified in his expert disclosure, including general

industry customs beyond his own personal experiences and CardiAQ’s damages. Other rulings

may be made at trial as the presentation of evidence warrants.

b. Neovasc’s Motion to Exclude Expert Testimony of Michael Wagner [ECF No. 344]

Neovasc’s Motion to Exclude Expert Testimony of Michael Wagner is denied. In his

expert report, Mr. Wagner calculated a “reasonable royalty” for Neovasc’s misappropriation of


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trade secrets. This is an appropriate method for determining damages caused by the

misappropriation of trade secrets. See Curtiss-Wright Corp. v. Edel-Brown Tool & Die Co., 381

Mass. 1, 11 (1980) (“This court has recognized three acceptable methods of measuring damages

in cases involving business torts such as the misappropriation of trade secrets: the defendant’s

profits realized from his tortious conduct, the plaintiff’s lost profits, or a reasonable royalty.”). In

addition, his reasonable royalty calculation may be used to assist in the determination of

damages for breach of the Non-Disclosure Agreement, which is governed by Canadian law. See

Smith v. Landstar Properties Inc., 2011 BCCA 44, 2011 CarswellBC 145 (Can.) (“[T]he law

gives effect to the instinctive reaction that, whether or not the appellant would have been better

off if the wrong had not been committed, the wrongdoer ought not to gain an advantage for free,

and should make some reasonable recompense. . . . The law can in such cases act either by

ordering payment over of a percentage of any profit or, in some cases, by taking the cost which

the wrongdoer would have had to incur to obtain (if feasible) equivalent benefit from another

source.”) (quoting Experience Hendrix LLC v. PPX Enterprises Inc., [2003] EWCA Civ 323

(Eng. C.A.)).

Neovasc specifically challenges Mr. Wagner’s assumption that the information CardiAQ

shared with Neovasc gave Neovasc an 18-month head start in the development of its Tiara

device. This assumption was embedded within Mr. Wagner’s calculation of the reasonable

royalty. It was based on information provided by Mr. Ratz and the fact that CardiAQ’s work on

the relevant technology began in August 2008 and CardiAQ and Neovasc’s business relationship

ended in April 2010. [ECF No. 363-2 at 78]. An expert report may be based on assumptions that

the expert does not know to be true, and it is up to the party who calls the expert to establish the

assumption through other evidence. See Williams v. Illinois, 132 S. Ct. 2221, 2228 (2012)


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(“Under settled evidence law, an expert may express an opinion that is based on facts that the

expert assumes, but does not know, to be true. It is then up to the party who calls the expert to

introduce other evidence establishing the facts assumed by the expert.”). Given that there is some

evidence in the record to support the 18-month assumption, and that the assumption is one piece

of Mr. Wagner’s larger reasonable royalty analysis, the Court will not exclude his opinion. At

trial, CardiAQ must present other evidence to establish the facts assumed by the expert, and

Neovasc is free to challenge that evidence and cross-examine Mr. Wagner (and others) about the

assumption.

In addition, Neovasc contends that Mr. Wagner’s analysis inappropriately incorporated

financial information that arose after the date of the hypothetical negotiation. “A comprehensive

(but unprioritized and often overlapping) list of relevant factors for a reasonable royalty

calculation appears in Georgia–Pacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116,

1120 (S.D.N.Y. 1970).” Trustees of Boston Univ. v. Everlight Elecs. Co., No. CV 12-11935-

PBS, 2015 WL 6408118, at *1 (D. Mass. Oct. 23, 2015) (quoting ResQNet.com, Inc. v. Lansa,

Inc., 594 F.3d 860, 869 (Fed. Cir. 2010)). Several of the factors listed in Georgia-Pacific involve

such ex-post evidence, including: the “current popularity” of the infringing product, the

“established profitability” of the product, and the “extent to which the infringer has made use of

the invention.” Georgia-Pac. Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y.

1970), modified sub nom. Georgia-Pac. Corp. v. U.S. Plywood-Champion Papers, Inc., 446 F.2d

295 (2d Cir. 1971); see also Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1333 (Fed. Cir.

2009) (“[T]he hypothetical negotiation analysis ‘permits and often requires a court to look to

events and facts that occurred thereafter and that could not have been known to or predicted by

the hypothesized negotiators.’”) (quoting Fromson v. Western Litho Plate & Supply Co., 853


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F.2d 1568, 1575 (Fed. Cir. 1988)). Though Mr. Wagner considered ex-post evidence, such as the

value of the Tiara in 2015, he calculated a reasonable royalty using a hypothetical negotiation

date of March 2010, the date on which CardiAQ and Neovasc cut ties. [ECF No. 363-2 at 63].

Accordingly, Mr. Wagner’s inclusion of ex-post evidence does not render his opinion

inadmissible, but it may be challenged by Neovasc at trial through cross-examination or other

evidence. See TV Interactive Data Corp. v. Sony Corp., 929 F. Supp. 2d 1006, 1029 (N.D. Cal.

2013) (finding that challenge to use of ex-post evidence in royalty calculation goes to weight and

not admissibility).

Lastly, Neovasc objects to Mr. Wagner’s reliance on Neovasc’s sales of securities to

calculate a baseline royalty. Neovasc, however, mischaracterizes the cases on which it relies. The

courts in those cases took issue with the plaintiffs’ failure to justify how securities sale proceeds

should be apportioned among various assets, including the misappropriated trade secrets. See,

e.g., Hilderman v. Anea TekSci, Inc., No. 05-cv-1049, 2010 U.S. Dist. LEXIS 11391, at *4-8

(S.D. Cal. Feb. 10, 2010) (finding expert opinion unreliable because it assigned the entire

“Goodwill” value of transaction to the trade secrets allegedly misappropriated); Storage Tech.

Corp. v. Cisco Sys., No. 00-2253, 2003 U.S. Dist. LEXIS 17347, at *28-29 (D. Minn. Sept. 25,

2003), aff’d, 395 F.3d 921 (8th Cir. 2005) (finding that expert opinion amounted to “nothing

more than rank speculation,” in part because expert attributed entire acquisition price to the

allegedly misappropriated trade secrets). No cases cited by Neovasc hold that a plaintiff may not

rely on the proceeds from a securities sale, acquisition, or merger in the damages calculation for

misappropriated trade secrets. See id. Here, in contrast to the cited cases, Mr. Wagner did

apportion the value of the securities sale between CardiAQ’s and Neovasc’s contributions. [ECF

No. 363-2 at 67]. Neovasc may challenge this apportionment at trial, but it is not grounds for


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excluding Mr. Wagner’s opinion.

c. Neovasc’s Motion in Limine to Exclude Certain Expert Opinions of Richard Hillstead [ECF No. 354]

Neovasc’s Motion in Limine argues that several components of Dr. Richard Hillstead’s

expert report should be excluded, namely his opinions regarding (1) “industry standards;” (2)

whether something can be “unseen;” (3) whether Neovasc benefited from “negative know how;”

and (4) the secrecy of CardiAQ’s alleged trade secrets.

First, Dr. Hillstead may testify regarding industry customs within the field of

transcatheter cardiovascular devices. Dr. Hillstead has several decades of experience in the field,

at different companies and in different positions, which has given him the requisite expertise to

opine on industry customs. See Levin v. Dalva Bros., Inc., 459 F.3d 68, 79 (1st Cir. 2006)

(“Expert testimony on industry standards is common fare in civil litigation.”); Ji v. Bose Corp.,

538 F. Supp. 2d 354, 358-59 (D. Mass. 2008) (holding that years of experience in industry

qualified expert to testify on industry customs).

Second, Dr. Hillstead may opine generally that Neovasc benefited in its development of a

transcatheter mitral valve replacement device by seeing CardiAQ’s confidential information, but

he may not specifically testify regarding the “inventive process in the human brain,” which goes

beyond his area of expertise.

Third, Dr. Hillstead may offer an opinion that Neovasc benefited from “negative know-

how” (i.e. CardiAQ’s mistakes and discarded or abandoned design features). Dr. Hillstead’s

experience is more than an adequate basis to qualify him to testify about the general value of the

negative know-how CardiAQ disclosed to Neovasc. The jury will be instructed regarding how

and if negative know-how factors into the misappropriation of trade secrets claim.


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Lastly, Dr. Hillstead may not express an opinion about whether or not any of CardiAQ’s

technology constitutes a trade secret. Dr. Hillstead may testify about the content of specific

public disclosures that he reviewed, but may not opine about the ultimate issue of secrecy. See

GSI Tech., Inc. v. United Memories, Inc., No. 5:13-cv-01081, 2015 U.S. Dist. LEXIS 140085,

*11-12 (N.D. Cal. Oct. 14, 2015) (“[A]n expert’s literature review can prove only that the

alleged trade secrets were not in the documents that the expert reviewed, not that they exist

nowhere in the public domain.”).

d. Neovasc’s Motion in Limine [ECF No. 358]

Neovasc’s omnibus Motion in Limine contains four subparts. For the reasons described

below, the Motion is granted in part.

First, Neovasc moved to prohibit CardiAQ from altering or modifying its operative trade

secret claims during trial. CardiAQ has identified six trade secrets and it may not add to or modify

them at trial. At the pre-trial conference, CardiAQ confirmed that it does not plan to alter them.

“Confidential Information” under the Non-Disclosure Agreement, however, is not limited to

qualifying trade secrets,2 and CardiAQ may argue that the Confidential Information allegedly used

or disclosed in violation of the Non-Disclosure Agreement extends beyond the 6 identified trade

secrets.

Second, Neovasc moved to prohibit CardiAQ from presenting or arguing a negative know-

2 Confidential Information is defined in the Non-Disclosure Agreement as “any oral or written information received from the Discloser which is not generally known to the public . . . . Confidential Information includes, by way of example and not limitation, information of a technical sense such as trade secrets; manufacturing processes or devices; current products or products under development; research subjects; methods and results; matters of a business nature such as information about cost, margins, pricing policies, markets, sales, suppliers and customers; product, marketing or strategic plans; financial information; personnel records and other information of a similar nature.” [ECF No. 64-2].


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how theory of trade secret liability. Even if Neovasc is correct regarding the scope of trade secrets

under Massachusetts law, which will be addressed at the charge conference and in the jury

instructions, the challenged negative know-how evidence is relevant to other issues in the case

beyond the identification of CardiAQ’s trade secrets and therefore is admissible. See Wielgus v.

Ryobi Techs., Inc., 2012 WL 2277851, at *1 (N.D. Ill. June 18, 2012) (“The purpose of a motion

in limine is to prevent the jury from hearing evidence that is clearly inadmissible on all possible

grounds.”).

Third, Neovasc moved to exclude evidence or argument that the parties expressly entered

into a non-competition agreement or legal partnership, and/or had a duty to disclose competitive

activities to one another. The Non-Disclosure Agreement unambiguously: (1) forbid Neovasc from

using CardiAQ’s Confidential Information “for any purpose other than evaluating the proposed

business relationship;” and (2) allowed Neovasc to work on a competing product, provided it did

not use CardiAQ’s Confidential Information.3 Neither the Non-Disclosure Agreement (expressly

governed by Canadian Law) nor the Purchase Orders (also governed by Canadian law4) forbid

Neovasc from working on a competing product nor created an affirmative duty for Neovasc to

disclose its development of a competing device; CardiAQ cannot use the Canadian duty of honesty

in contractual performance to read such requirements into the contract. See Bhasin v. Hrynew,

2014 SCC 71, 2014 CSC 71, 2014 CarswellAlta 2046 (Can.) (holding that general duty of honesty

3 This is discussed in more detail in the Memorandum and Order resolving Neovasc’s Motion for Partial Summary Judgment. [ECF No. 417]. 4 The Purchase Order does not have a choice-of-law provision, and under Massachusetts’ “functional” approach to contractual choice of law issues, Canadian law applies. See Dunfey v. Roger Williams Univ., 824 F. Supp. 18, 20 (D. Mass. 1993). Though CardiAQ was located in Massachusetts when the Purchase Orders were entered, the services and supplies were all performed and provided by Neovasc in British Columbia, and the parties’ other contract (the Non-Disclosure Agreement) was expressly governed by the laws of British Columba.


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in contractual performance “means simply that parties must not lie or otherwise knowingly mislead

each other about matters directly linked to the performance of the contract” and that it “does not

impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the

contract.”). That being said, CardiAQ still may argue that Neovasc’s conduct, as a whole, violated

the duty of honesty in contractual performance implied in both contracts.

In addition, under Canadian law, “[t]he parol evidence rule precludes admission of

evidence outside the words of the written contract that would add to, subtract from, vary, or

contradict a contract that has been wholly reduced to writing.” Creston Moly Corp. v. Sattva

Capital Corp., 2014 SCC 53, 2014 CarswellBC 2267 (Can.). “To this end, the rule precludes,

among other things, evidence of the subjective intentions of the parties.” Id. Accordingly, evidence

of Mr. Ratz’ subjective intentions or understanding is irrelevant to the interpretation of the Non-

Disclosure Agreement. Id. Nonetheless, Mr. Ratz’ testimony regarding his subjective intentions or

expectations may be relevant to other counts, including misappropriation of trade secrets and

Chapter 93A, and therefore is not excluded at this time. See e.g., Shealey v. Fed. Ins. Co., 946 F.

Supp. 2d 193, 199 (D. Mass. 2012), on reconsideration in part (Apr. 3, 2013) (“Simply put, chapter

93A casts a wider net because it is not constrained by the expectations created by the contract.”).

Lastly, the Court denies Neovasc’s Motion to Preclude CardiAQ’s Experts from Testifying

Outside the Scope of their Rule 26(a)(2) Disclosures because the expert statements and opinions

at issue were timely disclosed by CardiAQ during the discovery process. Neovasc asserts that two

of CardiAQ’s expert witnesses, Mr. Ratz and Dr. Bavaria, included opinions in their depositions

that were not contained in their written disclosures nor supplemented under Fed. R. Civ. P

26(e)(1)(A). Under Rule 26(e)(1)(A), however, a party who has made a disclosure need only

“supplement or correct its disclosure or response . . . if the additional or corrective information has


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not otherwise been made known to the other parties during the discovery process or in writing.”

Thus, “when an expert fully acknowledges a supplemental basis for his opinion during his

deposition, there is no need for additional supplementation.” Bank of Am., N.A. v. Kansas CVS

Pharmacy, LLC, No. 11-2481-JTM, 2014 WL 2217938, at *1 (D. Kan. May 29, 2014); see also

Advisory Committee Note Rule 26(e) (“There is, however, no obligation to provide supplemental

or corrective information that has been otherwise made known to the parties in writing or during

the discovery process.”). Therefore, to the extent Neovasc seeks to exclude opinions expressed by

Mr. Ratz and Dr. Bavaria during their depositions, Neovasc’s motion is denied.

The discovery schedule did not give CardiAQ an opportunity to submit rebuttal expert

reports in response to opinions made by Neovasc’s experts. As a result, CardiAQ told Neovasc

that Mr. Ratz and Dr. Bavaria had formed additional opinions after reviewing Neovasc’s expert

reports, and Neovasc had an opportunity to question both Mr. Ratz and Dr. Bavaria regarding

these new opinions during their depositions. CardiAQ was not required to make any additional

disclosures beyond this; Neovasc had ample opportunity to explore the bases for Mr. Ratz and

Dr. Bavaria’s opinions. Maga v. Hennessy Indus., No. 12-11423, 2014 U.S. Dist. LEXIS

184327, at *35 (D. Mass. Dec. 1, 2014) (“The purpose of the disclosure requirement is to ensure

that the opposing party will have an opportunity to ‘explore the basis’ for the expert’s

opinions.”).

Neovasc also seeks to preclude Mr. Ratz from testifying consistent with the testimony set

forth in paragraphs 6-7, 23, 26, 29, and 32 of his Declaration in Support of CardiAQ’s

Opposition to Neovasc’s Motion for Summary Judgment. [ECF No. 317]. This declaration was

filed after fact and expert discovery had ended. Mr. Ratz made the statements in the declaration

in his capacity as a fact witness with personal knowledge, and not as an expert. Id. ¶ 1. To the


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extent the declaration contains Mr. Ratz’ expert opinion, it is consistent with information

previously stated by Mr. Ratz at his deposition and included in his expert disclosure. See Maga,

2014 U.S. Dist. LEXIS 184327, at *41 (D. Mass. Dec. 1, 2014) (declining to strike testimony

from expert’s affidavit because the “paragraphs cited by defendants do not appear to express new

information, but instead reiterate information previously stated by [the expert] in his expert

report or at the deposition.”). Therefore, none of the paragraphs in Mr. Ratz’ declaration will be

excluded.

SO ORDERED.

Dated: April 25, 2016

/s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT COURT JUDGE


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Plaintiff, v.

NEOVASC INC. and NEOVASC TIARA INC.,

Defendants.

* ******* * *


MEMORANDUM AND ORDER

July 28, 2016

BURROUGHS, D.J. On May 19, 2016, following a 13-day trial, a jury found defendants Neovasc Inc. and

Neovasc Tiara Inc. (“Neovasc”) liable to plaintiff CardiAQ Valve Technologies, Inc.

(“CardiAQ”) for breach of contract and misappropriation of trade secrets. Since then, the parties

have filed numerous post-trial motions, including renewed motions for judgment as a matter of

law by each party [ECF Nos. 511, 520], motions for a new trial by Neovasc [ECF Nos. 521,

522], and motions for injunctive relief and enhanced damages by CardiAQ [ECF Nos. 513, 516].

This Order resolves the two renewed motions for judgment as a matter of law; the Court will

address the remaining motions once they are fully briefed. For the reasons stated below, both

renewed motions for judgment as a matter of law are DENIED.

I. Background

CardiAQ filed this action on June 6, 2014, asserting claims arising out of the alleged

misuse of its confidential information and trade secrets by the defendants. From June 2009 to

April 2010, Neovasc worked with CardiAQ to help assemble CardiAQ’s transcatheter mitral


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valve implant (“TMVI”) device. During this time, CardiAQ and Neovasc entered into several

purchase orders (the “Purchase Orders”), in which they agreed to the work Neovasc would

perform. [See e.g., ECF No. 64, Ex. D].

In October 2009, in the midst of this business relationship, Neovasc began developing its

own TMVI device. CardiAQ’s complaint alleged that in developing this TMVI device, Neovasc

breached the parties’ Non-Disclosure Agreement (“NDA”) and misappropriated CardiAQ’s trade

secrets. The complaint further alleged that Neovasc’s development of its own TMVI device

breached the implied covenant of good faith and fair dealing in both the NDA and the Purchase

Orders, violated Mass. Gen. L. Ch. 93A (“Chapter 93A”), and constituted fraud. CardiAQ also

brought a claim for correction of inventorship under 35 U.S.C. § 256, requesting that its two co-

founders be added as inventors to Neovasc’s U.S. Patent No. 8,579,964 (the ‘“964 Patent”).

In an April 25, 2016 opinion, the Court granted Neovasc summary judgment on the fraud

claim, finding that CardiAQ had not identified actionable false statements and that Neovasc’s

failure to disclose its competing product was not fraud. [ECF No. 417]. The remaining claims

proceeded to trial, and on May 19, 2016 a jury returned a verdict in favor of CardiAQ for

$70,000,000. [ECF No. 483]. Specifically, the jury found that Neovasc (1) breached the NDA;

(2) breached the duty of honest performance in the NDA but not the Purchase Orders1; and (3)

misappropriated three of CardiAQ’s six identified trade secrets. Id. The jury awarded CardiAQ

zero damages for the contract claims and $70,000,000 for the trade secret claims.2

1 Because both the Non-Disclosure Agreement and Purchase Orders are governed by Canadian law, CardiAQ’s original claim for breach of the covenant of good faith and fair dealing under Massachusetts law was advanced under the analogous duty of honest performance under Canadian law. 2 CardiAQ’s inventorship claim was not submitted to the jury and will be resolved by this Court after it is fully briefed.


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Before the case was submitted to the jury, both parties filed motions for judgment as a

matter of law under Fed. R. Civ. P. 50(a). [ECF Nos. 474, 478]. The Court deferred ruling on

both motions, and the parties have since filed renewed motions for judgment as a matter of law

under Fed. R. Civ. P. 50(b). [ECF Nos. 511, 520]. The renewed motions only challenge the

jury’s findings on CardiAQ’s claims for breach of the duty of honest performance. Neovasc

contends that no reasonable jury could find that it breached the duty of honest performance in the

NDA while CardiAQ counters that no reasonable jury could find that Neovasc did not breach the

duty of honest performance in the Purchase Orders.

II. Discussion

The parties’ original motions for judgment as a matter of law were brought under Fed. R.

Civ. P. 50(a) and their renewed motions under Fed. R. Civ. 50(b). “The standard for granting a

Rule 50 motion is stringent. ‘Courts may only grant a judgment contravening a jury’s

determination when the evidence points so strongly and overwhelmingly in favor of the moving

party that no reasonable jury could have returned a verdict adverse to that party.’” Malone v.

Lockheed Martin Corp., 610 F.3d 16, 20 (1st Cir. 2010) (quoting Rivera Castillo v. Autokirey,

Inc., 379 F.3d 4, 9 (1st Cir. 2004)); see also Crowe v. Bolduc, 334 F.3d 124, 134 (1st Cir. 2003)

(“This review [under Fed. R. Civ. P. 50] is weighted toward preservation of the jury verdict,

which stands unless the evidence was so strongly and overwhelmingly inconsistent with the

verdict that no reasonable jury could have returned it.”). A motion for judgment as a matter of

law under Fed. R. Civ. P. 50 “may only be granted when, after examining the evidence of record

and drawing all reasonable inferences in favor of the non moving party, the record reveals no

sufficient evidentiary basis for the verdict.” Crowe, 334 F.3d at 134 (quotation marks omitted).

The jury instructions defined the duty of honest performance as follows:


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The duty of honest performance means that neither party may lie or otherwise knowingly mislead the other party about matters linked to the performance of the contract. This does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract. It is a simple requirement . . . not to lie or mislead the other party about one’s contractual performance.

[ECF No. 488 at 163-164]. This instruction tracked the recent Canadian Supreme Court decision

in Bhasin v. Hrynew, which first recognized the duty of honest performance. 2014 SCC 71 (Can.

2014). In Bhasin, the Canadian Supreme Court explained the duty of honest performance as the

“simple requirement not to lie or mislead the other party about one’s contractual performance.”

Id. ¶ 73. It “does not impose a duty of loyalty or of disclosure or require a party to forego

advantages flowing from the contract,” the court explained, but does require that “parties . . . not

lie or otherwise knowingly mislead each other about matters directly linked to the performance

of the contract.” Id.

Applying the stringent standard required under Fed. R. Civ. P. 50, the Court finds that

neither party is entitled to judgment as a matter of law. The Court will not disrupt the jury’s

verdict, which reasonably found that Neovasc breached its duty to honestly perform the NDA but

not the Purchase Orders.

First, with respect to the NDA, there was evidence at trial that over the course of the

business relationship, Neovasc asked for, received, and used CardiAQ’s confidential information

after it began to develop a competing product, without taking any steps to segregate its

employees from working on the two projects.3 Under the NDA, the parties agreed that the

recipient of “Confidential Information”4 would not use or disclose such information for “any

3 A more thorough recitation of the facts is included in the Court’s previous order granting Neovasc judgment as a matter of law on CardiAQ’s Chapter 93A claim. [ECF No. 495]. 4 Confidential Information is defined in the NDA as “any oral or written information received from the Discloser which is not generally known to the public . . . Confidential Information includes, by way of example and not limitation, information of a technical sense such as trade


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purpose other than evaluating the proposed business relationship.” [ECF No. 64, Ex. B]. They

further agreed that the recipient would not “directly or indirectly, disclose any Confidential

Information to any third party or use the Confidential Information for its own benefit or for the

benefit of any third party.” Id. Based on the evidence presented at trial, a jury very reasonably

could have found that Neovasc not only breached the NDA, but also failed to honestly perform

its obligations as set forth in the NDA. A reasonable jury could have found that Neovasc

knowingly misled CardiAQ, by continuing to ask for and receive CardiAQ’s confidential

information while simultaneously and surreptitiously developing its own competing product. A

jury could have also reasonably found that Randy Lane, Neovasc’s primary point of contact with

CardiAQ and the inventor of the competing TMVI device, intentionally misled CardiAQ into

sharing confidential information that would assist Neovasc in its competitive development.

Although reasonable minds could perhaps differ on these points, the evidence certainly did not

strongly and overwhelmingly compel a different conclusion or establish that the jury’s findings

were not supported.

Based on these same facts, a reasonable jury could have also concluded that Neovasc did

not breach the duty of honest performance in the Purchase Orders. CardiAQ claims that Neovasc

breached this duty related to the Purchase Orders by continuing to “actively seek and use

CardiAQ’s confidential information—through its purchase orders with CardiAQ—while

perpetuating CardiAQ’s false belief that Neovasc was a benign vendor.” [ECF No. 511 at 3].

This argument conflates Neovasc’s obligations under the NDA with its obligations under the

secrets; manufacturing processes or devices; current products or products under development; research subjects; methods and results; matters of a business nature such as information about cost, margins, pricing policies, markets, sales, suppliers and customers; product, marketing or strategic plans; financial information; personnel records and other information of a similar nature.” [ECF No. 64, Ex. B].


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Purchase Orders. The one-page Purchase Orders, which set forth the work Neovasc agreed to

perform for CardiAQ, were silent with respect to confidentiality and competition, presumably

because these issues were covered by the NDA. The duty of honest performance requires

dishonesty “as to matters directly linked to their obligations under the contract.” Zalkow v.

Taymor Indus. U.S.A., Inc., No. 2:14-CV-00243 JWS, 2015 WL 2128902, at *4 (D. Ariz. May

5, 2015) (applying Canadian law) (emphasis added). Here, the jury reasonably found that

Neovasc did not lie or mislead CardiAQ about matters linked to its obligations under the

Purchase Orders. By finding Neovasc liable for breach of the duty of honest performance in the

NDA, but not the Purchase Orders, the jury recognized the distinct obligations imposed by the

two contracts.

CardiAQ further argues that Neovasc created a conflict of interest as to CardiAQ by

developing a competing project, and that this too constituted a breach of the duty of honest

performance under the Purchase Orders. Consistent with Canadian Law, however, the jury

instructions stated that the duty of honest performance does not impose a duty of loyalty. See

Bhasin, 2014 SCC 71, ¶ 73 (noting that the duty of honest performance “does not impose a duty

of loyalty or of disclosure or require a party to forego advantages flowing from the contract”).

Accordingly, although there was overwhelming evidence that Neovasc began developing, in

secret, a competing product while still working for CardiAQ, the jury did not need to find that

this conduct constituted a breach of Neovasc’s duty to honestly perform its obligations under the

Purchase Orders or that Neovasc necessarily lied or misled CardiAQ about its performance of the

Purchase Orders.


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III. Conclusion

In sum, at trial, each side put forth plausible evidence and arguments in support of their

respective views of what transpired between the parties. Both Neovasc and CardiAQ were very

competently represented. The jury verdict, arrived at after a reasonable period of deliberating,

reflected an attentive and deliberative process that resulted in a discerning verdict. As an

example, the fact that the jury, having found both a contract breach and a theft of trade secrets,

awarded all of the damages in one claim and none for the other quite accurately reflected the

strength of the damages evidence relative to the two claims. The job of the jury is to decide

between competing arguments. In this case, the jury did just that. The fact that one side prevailed

on any given argument and the other did not, does not make the jury decision unsupported or

unreasonable as contemplated by Fed. R. Civ. P. 50. The jurors did the job they were asked to do

and they did it thoughtfully and responsibly. Overturning this verdict would be contrary to the

fundamental precepts underlying the jury system and is certainly not required as a matter of

fairness or per the terms of Fed. R. Civ. P. 50.

Accordingly, both parties’ renewed motions for judgment as a matter of law [ECF Nos.

511, 520] are DENIED. The Clerk of Court is also directed to terminate the pending motions for

judgment as a matter of law. [ECF Nos. 474 and 478].

So Ordered.

Dated: July 28, 2016

/s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT COURT JUDGE


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UNITED STATES DISTRICT COURT DISTRCT OF MASSACHUSETTS


Plaintiff,


Defendants.

* * * * * * * * * * * *


MEMORANDUM AND ORDER

October 31, 2016

BURROUGHS, D.J.

From June 2009 through April 2010, Plaintiff CardiAQ Valve Technologies, Inc.

(“CardiAQ”) hired Defendant Neovasc Inc. (“Neovasc”) to help construct prototypes of

CardiAQ’s transcatheter mitral valve implant (“TMVI”) device. CardiAQ alleges that Neovasc

breached the parties’ non-disclosure agreement (“NDA”) and misappropriated CardiAQ’s trade

secrets by using CardiAQ’s confidential information to develop its own competing TMVI

device. On May 19, 2016, following a two-week trial, a jury found for CardiAQ as to some,

though not all, of its claims. The jury returned a verdict finding that Neovasc: (1) breached the

NDA; (2) breached the duty of honest performance in the NDA; and (3) misappropriated three of

CardiAQ’s six claimed trade secrets. [ECF No. 483]. The jury awarded CardiAQ $70,000,000 in

damages for Neovasc’s theft of trade secrets, with no additional damages for the contract

breaches.


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The Court has already resolved several post-trial motions. On May 27, 2016, the Court

granted Neovasc’s motion for judgment as a matter of law with respect to CardiAQ’s Chapter

93A claim, finding that Neovasc’s alleged wrongful acts had not occurred “primarily and

substantially within the commonwealth” of Massachusetts, as is required under the statute. Mass.

Gen. L. Ch. 93A, § 11. [ECF No. 495]. On July 28, 2016, the Court denied both parties’ renewed

motions for judgment as a matter of law with respect to CardiAQ’s duty of honest performance

claims, declining to overturn the jury’s finding that Neovasc had breached the duty of honest

performance with regard to the NDA, but not with the parties’ purchase orders. [ECF No. 529].

On August 15, 2016, the Court held oral argument on the remaining post-trial motions:

CardiAQ’s motions for enhanced damages and injunctive relief [ECF Nos. 513, 516] as well as

Neovasc’s motions for a new trial on damages and trade secrets 4-6 [ECF Nos. 511, 520]. The

Court also heard argument on CardiAQ’s inventorship claim, which was left for the Court rather

than the jury to decide.

Finally, on October 19, 2016, in anticipation of an appeal, Neovasc filed motions and a

supporting memorandum [ECF Nos. 571-574] seeking the Pro Hac Vice admission of three

additional attorneys. CardiAQ opposed the motions on October 24, 2016 [ECF No. 578].

This Order resolves all of the outstanding motions, as well as CardiAQ’s inventorship

claim. For the reasons stated herein: (1) CardiAQ’s motion for enhanced damages [ECF No. 513]

is GRANTED IN PART; (2) CardiAQ’s motion for injunctive relief [ECF No. 516] is

GRANTED IN PART; (3) Neovasc’s motion for a new trial on damages [ECF No. 522] is

DENIED; (4) Neovasc’s motion for a new trial on trade secrets 4-6 [ECF No. 521] is DENIED;

(5); Dr. Quadri and Mr. Ratz are to be added as co-inventors of U.S. Patent No. 8,579,964; and


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(6) Neovasc’s motions for the Pro Hac Vice admission of new attorneys [ECF Nos. 571-573] are

DENIED as MOOT.

I. Background

a. Procedural Background

In its original complaint, filed on June 6, 2014 [ECF No. 1], as well as its amended

complaint, filed on January 15, 2015 [ECF No. 64], CardiAQ brought the following seven claims

against Neovasc: (1) correction of inventorship under 35 U.S.C. § 256; (2) breach of the NDA;

(3) breach of the implied covenant of good faith and fair dealing in the NDA and purchase

orders;1 (4) fraud; (5) misappropriation of trade secrets under Mass. Gen. L. ch. 93 §§ 42, 42A

and the common law; (6) violation of Mass. Gen. L. ch. 93A § 11; and (7) injunctive relief.

In April 2016, the Court granted Neovasc’s motion for summary judgment as to the fraud

count, finding that Neovasc did not have an affirmative duty to disclose its competitive activities

to CardiAQ, and therefore did not commit fraud by failing to disclose such activity once it began.

[ECF No. 417]. The Court, however, denied Neovasc’s motion for summary judgment as to the

inventorship and Chapter 93A counts. Id.

The next month, this action proceeded to trial. Over the course of the two-week trial, the

two founders of CardiAQ—Brent Ratz and Dr. Arshad Quadri—testified, as did Rob Michiels,

the former CEO of CardiAQ; Randy Lane, Vice President of Research and Development at

Neovasc; and Alexei Marko, CEO of Neovasc. The jury also heard the deposition of testimony

of several fact witnesses that were not present at trial, including: Colin Nyuli, an intellectual

property manager and former project engineer at Neovasc; Krista Neale, the manager of new

1 Because both the NDA and the parties’ purchase orders are governed by Canadian law, at trial, CardiAQ’s claims for breach of the covenant of good faith and fair dealing under Massachusetts law were advanced under the analogous duty of honest performance under Canadian law.


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technology development and former project engineer at Neovasc; Kathleen Hung, a project

manager at Neovasc; Dr. Michael Mack, a former member of CardiAQ’s scientific advisory

board; and Glen Rabito, a senior manager of research and development at Edwards Lifesciences

and a former engineering manager and research and development project leader at CardiAQ.

In addition, three experts testified for CardiAQ. Dr. Joseph Bavaria, Vice Chairman of

the Department of Cardiovascular Surgery at the University of Pennsylvania and Director of the

Transcatheter Valve Program at the University of Pennsylvania, testified as to the anatomy of the

heart and specifically, the mitral valve. Dr. Rick Hillstead, a Fellow on the Council of Clinical

Cardiology within the American Heart Association, testified generally about the development of

medical devices and the customs and practices of vendors, suppliers, and development houses in

the medical device field. Finally, Michael J. Wagner, the managing director at Litinomics, Inc., a

financial and economic consulting firm, testified as to damages, opining that the reasonable

royalty Neovasc owed to CardiAQ was $90 million, based on a hypothetical negotiation taking

place in 2010. Three experts also testified for Neovasc. Steven Little, a cardiologist at Houston

Methodist Hospital and the medical director of its valve clinic, testified regarding cardiac

imaging and the anatomy of the mitral valve, as well as the interaction of CardiAQ’s and

Neovasc’s respective devices within the native mitral valve anatomy. Karl R. Leinsing, a

mechanical engineer who develops medical devices, testified regarding CardiAQ’s trade secret

claims and Neovasc’s Tiara development. Lastly, Carla Mulhern, managing principal in the

Washington D.C. office of Analysis Group, testified as to damages, and opined that correcting

for various errors in Mr. Wagner’s analysis, the appropriate royalty figure was no more than $2

million.


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The jury returned a split verdict. [ECF No. 483]. The verdict form contained eight

questions. The first four concerned CardiAQ’s breach of contract claims. The jury was asked to

determine whether CardiAQ had proven, by a preponderance of the evidence that Neovasc had:

(1) breached the NDA; (2) breached the duty of honest performance in the NDA; and (3)

breached the duty of honest performance in the purchase orders. If the jury answered yes to any

of these three questions, they were instructed to then determine the amount of money CardiAQ

should receive for Neovasc’s breach(es). The jury answered yes to the first two questions, but no

to the third: Neovasc had breached the NDA as well as the duty of honest performance in the

NDA, but not the purchase orders. As to the fourth question, the jury found that CardiAQ should

not receive any money for Neovasc’s breaches.

Next, the jury was asked to determine if Neovasc had misappropriated CardiAQ’s trade

secrets. At trial, CardiAQ maintained that Neovasc had misappropriated six of its trade secrets,

and the verdict form asked the jury to make a separate finding as to each one. The six alleged

trade secrets were originally identified by CardiAQ during discovery, and were described in trial

exhibit 1157. The alleged trade secrets were:

1. CardiAQ’s Rev. C Prototype Design [Tr. Ex. 1157 at 1-5];

2. CardiAQ’s Rev. D Prototype Design [Tr. Ex. 1157 at 5-10];

3. CardiAQ’s Rev. E Prototype Design [Tr. Ex. 1157 at 10-14];

4. A transcatheter replacement mitral valve prosthesis design that includes an expandable metal frame for supporting a tricuspid, one-way valve, the expandable metal frame sized for placement in a human native mitral valve space, where the prosthesis is configured for mitral valve implantation without relying exclusively on radial force but rather by engaging the native mitral valve annulus on the atrial side of the native mitral valve and by anchoring the prosthesis on the ventricular side of the native mitral valve annulus [Tr. Ex. 1157 at 14-17];

5. The CardiAQ Mandrel [Tr. Ex. 1157 at 18]; and


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6. CardiAQ’s Transcatheter Mitral Valve Implantation Development History

[Tr. Ex. 1157 at 18]. The jury found that that Neovasc had misappropriated trade secrets 4-6, but not trade secrets 1-3,

and that CardiAQ should receive $70 million as damages for Neovasc’s misappropriation.

The jury was also asked to make factual determinations with respect to the two counts—

inventorship and Chapter 93A—reserved for the Court. The jury found that CardiAQ had proven

(1) by a preponderance of the evidence that Neovasc engaged in unfair and deceptive acts or

practices; and (2) by clear and convincing evidence that the two founders of CardiAQ

contributed to the conception of Neovasc’s U.S. Patent No. 8,579,964 (the “‘964 Patent”).

b. Factual Background

Below is a summary of facts adduced at trial that are relevant to the outstanding issues in

this case:

Neovasc and CardiAQ’s business relationship began on June 4, 2009, after Brian

McPherson, the Vice President of Operations and President of the Surgical Products division at

Neovasc, sent an unsolicited email to CardiAQ co-founder Brent Ratz advertising Neovasc’s

products and services. [Tr. Day 3, 183:7-20; Tr. Ex. 349]. The email stated that Neovasc was the

only supplier of “custom pericardial tissue actively supporting companies developing minimally

invasive heart valves,” and that he was confident CardiAQ could benefit from Neovasc’s

services. [Tr. Ex. 349] Mr. McPherson attached a 15-page presentation to the email, describing

Neovasc’s services. Id. at 3-17.

Mr. Ratz responded that same day to indicate his interest in learning more about Neovasc.

[ECF No. 304-7 at 32]. Before speaking with Mr. McPherson about a potential business

relationship, Mr. Ratz suggested that the parties execute a Non-Disclosure Agreement. Id. Mr.


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Ratz emailed Mr. McPherson CardiAQ’s standard agreement, and Mr. McPherson responded

that he would rather use Neovasc’s. Id. On June 4, 2009, the parties executed Neovasc’s Non-

Disclosure Agreement (the “NDA”), agreeing that the recipient of “Confidential Information”

could not use or disclose such information for “any purpose other than evaluating the proposed

business relationship.” [Tr. Ex. 371].2 The parties agreed that the recipient of Confidential

Information could not “directly or indirectly, disclose any Confidential Information to any third

party or use the Confidential Information for its own benefit or for the benefit of any third

party.” Id. The NDA had a five-year term, and was governed by the laws of the Province of

British Columbia. Id. The NDA was executed via email and signed by Mr. Ratz and Neovasc

CEO Alexei Marko. [Tr. Day 3, 188:1-14; Tr. Ex. 371].

At the time Mr. McPherson reached out to CardiAQ, CardiAQ was a start-up developing

a TMVI device—a prosthetic heart valve delivered through a catheter to replace a

malfunctioning native mitral valve. Mitral regurgitation, one of the most common forms of heart

disease, can be treated by replacing the mitral valve, but, currently, the only way to replace the

mitral valve is through open heart surgery. By June 2009, CardiAQ, had developed a prototype

of its TMVI device, intended to replace the mitral valve through a catheter procedure, rather than

open heart surgery.

2 Confidential Information is defined in the NDA as “any oral or written information received from the Discloser which is not generally known to the public . . . Confidential Information includes, by way of example and not limitation, information of a technical nature such as trade secrets; manufacturing processes or devices; current products or products under development; research subjects; methods and results; matters of a business nature such as information about cost, margins, pricing policies, markets, sales, suppliers and customers; product, marketing or strategic plans; financial information; personnel records and other information of a similar nature.” [ECF No. 64, Ex. B].


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CardiAQ’s device consists of three elements: the frame, the delivery catheter, and the

tissue valve. [Tr. Day 3, 15:20-23]. Between June 2009 and April 2010, Neovasc worked with

CardiAQ to manufacture the tissue valve element. [Tr. Day 3, 16:1-3]. During this time,

CardiAQ and Neovasc entered into several purchase orders (the “Purchase Orders”), in which

they agreed to the work Neovasc would perform. [See e.g., ECF No. 64, Ex. D]. CardiAQ would

send metal frames to Neovasc’s Vancouver facility [Tr. Day 4, 36:15-37:2; Tr. Ex. 1205], and

Neovasc would attach tissue to the frame and assemble the final TMVI prototype. [Tr. Day 3,

24:23-25:2; Tr. Day 3, 35:1-2; Tr. Day 4, 26:1-3]. CardiAQ used the prototypes assembled by

Neovasc for several animal studies. [Tr. Day 3, 25:3-9; Tr. Day 4, 48:10-12].

Over the course of the 10-month relationship, Mr. Ratz regularly exchanged emails and

phone calls with Neovasc employees. Through these emails and phone calls, Neovasc

employees, including engineer Randy Lane, learned about the specifications, ongoing animal

testing, and development history of CardiAQ’s TMVI device. [See e.g., Exs. 1171; 1179; 1193;

1197; 1214]. During this time, CardiAQ sent frames of its Rev. C, D, and E prototypes to

Neovasc, which then attached the tissue valve element. [Tr. Day 3, 209:24-211:24; Tr. Day 4,

27:10-25; Tr. Day 4, 36:15-37:25].

On October 20, 2009, in the middle of CardiAQ and Neovasc’s business relationship, Mr.

Lane drew the first sketch of what would become Neovasc’s own TMVI device, now known as

the “Tiara.” [Tr. Day 8, 99:10-12; Day 9, 67:9-17; Tr. Ex. 1121]. After sketching the concept in

his lab notebook, Mr. Lane told Neovasc’s CEO Alexi Marko about the idea [Tr. Day 8,100:11-

21], and Mr. Marko instructed Mr. Lane to proceed with an in-house mitral valve program,

which he did. [Tr. Ex. 343; Tr. Day 8, 122:9-123:11]. Mr. Marko advised Mr. Lane not to tell

CardiAQ about Neovasc’s internal project, explaining in an October 21, 2009 email that, “when


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appropriate we may need to disclose to [CardiAQ] that we are working on something, but let’s

cross that bridge when we come to it.” [Tr. Ex. 343].

Neovasc and CardiAQ’s business relationship ended in April 2010, after CardiAQ leased

its own manufacturing facility in California and no longer needed Neovasc’s services. [Tr. Day

4, 46:9-16; Tr. Day 7, 119:14-25; Tr. Day 9, 107:19-22]. Until Neovasc’s relationship with

CardiAQ ended in April 2010, Mr. Lane worked on both Neovasc’s internal TMVI project and

CardiAQ’s valve assembly. [Tr. Day 9, 113:10-19]. Mr. Lane used the same lab notebook to

document his development of Neovasc’s valve and his assembly of CardiAQ’s valve, at times

including notes on adjacent pages. [Tr. Ex. 1121]. Neovasc did not restrict any of its engineers

from working on both the Tiara project and the CardiAQ project, and several did. [Tr. Day 9,

113:14- 24].

In December 2009, Neovasc began to prepare its first patent application relating to the

Tiara design. [Tr. Day 9, 107:23-108:5]. Neovasc filed the application on May 5, 2010 [Tr. Day

9, 107:23-25], naming Mr. Lane as the sole inventor. [Tr. Ex. 2756]. The U.S. Patent Office

issued the ‘964 Patent on November 12, 2013, naming Mr. Lane and Colin Nyuli, a Neovasc

employee who joined Neovasc in September 2010, as joint inventors. [Tr. Ex. 115]. The ‘964

Patent is a method patent for a transcatheter mitral valve prosthesis. Id.

Neovasc formally announced its internal TMVI project in a June 20, 2011 press release.

[Tr. Ex. 347; Tr. Day 9, 206:11-17]. Since then, Neovasc’s device has been implanted in over

100 animals. [Tr. Ex. 2533 at 57]. On February 3, 2014, Neovasc announced the first in-human

implantation of its device by physicians at St. Paul’s Hospital in Vancouver. [Tr. Ex. 2315]

Neovasc never told CardiAQ about its internal TMVI program. [Tr. Day 4, 51:14-18; Tr.

Day 9, 112:23-113:1]. Mr. Ratz and Dr. Quadri first learned of Neovasc’s development of a


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TMVI device in December 2011, after Neovasc’s patent application became public. [Tr. Day 3,

68:2-23; Day 4, 51:19-25]. Soon thereafter, in February 2012, counsel for CardiAQ contacted

Mr. Marko to express concern that Neovasc may have incorporated CardiAQ’s confidential

information into its Tiara device, in violation of the NDA. [Tr. Ex. 1389]. In June 2014, after

counsel for the parties exchanged multiple letters [see, e.g., Tr. Exs. 188, 1272, 2482], CardiAQ

filed the instant action. Neither CardiAQ’s nor Neovasc’s TMVI devices have received

regulatory approval, and both are currently in the clinical trial process.

II. CardiAQ’s Motions

CardiAQ’s two pending motions request enhanced damages [ECF No. 513] and

injunctive relief [ECF No. 516] in addition to the $70 million already awarded by the jury. The

motion for enhanced damages asks the Court to double the jury’s $70 million damages award.

The motion for injunctive relief requests that the Court order Neovasc to: (1) destroy all

information that CardiAQ sent to Neovasc between June 2009 and April 2010; (2) return to

CardiAQ any CardiAQ prototypes, or portions thereof, that CardiAQ provided to Neovasc and

that Neovasc still has in its possession, custody, or control; (3) without the written consent of

CardiAQ, not prosecute claims covering subject matter that is either described in CardiAQ’s

Trade Secret Number 4, or described in claims of U.S. Patent No. 8,579,964, for which the Court

determines Dr. Quadri and Mr. Ratz significantly contributed; and (4) with certain limitations,

suspend all of its TMVI programs, including, but not limited to, its Tiara program, for eighteen

months.

Following oral argument, CardiAQ submitted a supplemental memorandum regarding

both motions [ECF No. 562], in which it suggested that the Court issue an injunction with

contingencies, for example, that the injunction be contingent on whether or not Neovasc satisfies


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the $70 million verdict and further argued that the Court should enhance damages by at least

33%, or $23.3 million. Neovasc responded to the supplemental memorandum on September 8,

2016. [ECF No. 567].

a. Motion for Enhanced Damages CardiAQ’s request for enhanced damages arises under Mass. Gen. L. ch. 93, § 42, which

states that:

Whoever embezzles, steals or unlawfully takes, carries away, conceals, or copies, or by fraud or by deception obtains, from any person or corporation, with intent to convert to his own use, any trade secret, regardless of value, shall be liable in tort to such person or corporation for all damages resulting therefrom. Whether or not the case is tried by a jury, the court, in its discretion, may increase the damages up to double the amount found. The term ‘‘trade secret’’ as used in this section shall have the same meaning as is set forth in section thirty of chapter two hundred and sixty-six.

Mass. Gen. L. ch. 93, § 42 (emphasis added). This provision, which gives the Court discretion to

double the jury’s damages award in a trade secret case, has been applied sparingly in both state

and federal court. In Data Gen. Corp. v. Grumman Sys. Support Corp., 825 F. Supp. 340, 343 (D.

Mass. 1993), the court added $9,000,000 to the jury’s $27,417,000 award after finding that

defendant’ s misappropriation of trade secrets had been willful. In USM Corp. v. Marson

Fastener Corp., 467 N.E.2d 1271, 1276–77 (Mass. 1984), the Massachusetts Supreme Judicial

Court (“SJC”) held that enhanced damages were inappropriate, where the jury had awarded

damages based on defendant’s profit (i.e. unjust enrichment) rather than plaintiff’s lost profit.

The SJC found that “[t]he reference to damages ‘resulting from’ a defendant’s tortious act

concerns the trade secret holders’ loss of profit, and not, as here, a defendant’s profit at a

plaintiff’s expense.” Id. at 1285.

Neovasc argues that enhanced damages are precluded by the SJC’s decision in USM

Corp. “Absent damages for lost profits,” according to Neovasc, “[CardiAQ] has no basis to seek


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a new, novel construction of Ch. 93 § 42 inconsistent with the holding in USM.” [ECF No. 534

at 4]. CardiAQ counters that USM is inapposite, since it did not involve an award for reasonable

royalties. The USM holding, according to CardiAQ, should be limited to cases in which the

jury’s award disgorged the defendant’s profits, which was not the case here, where neither party

has made any profit from their still-unapproved TMVI devices. [ECF No. 546 at 5-8].

The Court agrees with CardiAQ that the SJC’s decision in USM is distinguishable and

does not preclude enhanced damages in this case. USM held that enhanced damages are not

available under Ch. 93 § 42 where the damages awarded by the jury constitute “a defendant’s

profit at a plaintiff’s expense.” USM, 467 N.E.2d at 1285. The SJC concluded that a defendant’s

ill-gotten gains cannot be enhanced under the statute, since they are technically not damages

“resulting from” the misappropriation. Id. USM does not apply to this case, where neither party

has made any profit from their still unapproved TMVI devices, and the plaintiff pursued a

reasonable royalty theory of damages. The reasonable royalty is the amount the parties would

have hypothetically agreed on to grant the defendant the right to use plaintiff’s trade secrets.

“The [reasonable royalty] determination remains one of damages to the injured party.” Fromson

v. Western Litho Plate and Supply Co., 853 F.2d 1568, 1574 (Fed. Cir. 1988) (emphasis

omitted), overruled on other grounds by Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v.

Dana Corp., 383 F.3d 1337, 1347 (Fed. Cir. 2004); see also Maxwell v. J. Baker, Inc., 86 F.3d

1098, 1109–10 (Fed. Cir. 1996) (“The objective of the reasonable royalty calculation is to

determine the amount necessary to adequately compensate for an infringement.”). This is distinct

from the award in USM, which disgorged defendant’s ill-gotten gains, and more analogous to

lost profits, which USM said can be enhanced under the statute.


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Further, Neovasc’s misappropriation was willful, such that some amount of enhanced

damages is appropriate. See Data Gen. Corp. v. Grumman Sys. Support Corp., 825 F. Supp. 340,

343 (D. Mass. 1993) (enhancing damages by 33% after finding that defendant’s misappropriation

of trade secrets had been willful). The same Neovasc employee—Randy Lane—was both the

primary developer of Neovasc’s Tiara device and the primary point of contact for CardiAQ.

Neovasc took no steps to limit Lane, or any other employee, from working on both projects,

despite the obvious conflict and potential for misuse.

Enhanced damages are particularly appropriate here, where the jury awarded reasonable

royalty damages. It is unlikely that in 2009 or 2010, CardiAQ would have actually licensed its

trade secrets to Neovasc, had Neovasc asked. The reasonable royalty, therefore, is based on a

legal fiction and does not fully compensate CardiAQ. Because of Neovasc’s misappropriation,

which now cannot be undone, CardiAQ was compelled to license its technology to Neovasc, at

the rate determined by the jury.

The Court therefore enhances damages by 30%, and Neovasc is ordered to pay $21

million in addition to the $70 million awarded by the jury.

b. Injunctive Relief

The permanent injunction requested by CardiAQ has four components, but the parties’

arguments have largely focused on the single most punitive aspect of the proposed injunction—

that with certain limitations, Neovasc be ordered to suspend all of its TMVI programs, including,

but not limited to, its Tiara program, for eighteen months. CardiAQ contends that “without an

injunction to reverse the unfair head start that Neovasc obtained by its breach and

misappropriation, CardiAQ will continue to be irreparably harmed” [ECF No. 527 at 11] and that

Neovasc will unfairly retain the competitive advantage it obtained by breaching the NDA and


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misappropriating its trade secrets. Neovasc responds that the proposed injunction duplicates the

money remedy sought and obtained by CardiAQ, that there is no basis for CardiAQ’s 18-month

head start argument, and that both the balance of hardships and public interest disfavor the

injunction. [ECF No. 537-1]. In a supplemental memorandum filed after oral argument, CardiAQ

added that an injunction is necessary and not duplicative, because there is a chance Neovasc will

not be able to pay the $70 million previously awarded by the jury. [ECF No. 562].

Based on “well-established principles of equity,” to obtain a permanent injunction, “[a]

plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies

available at law, such as monetary damages, are inadequate to compensate for that injury; (3)

that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity

is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). “The purpose of an injunction in

a trade secret case is to protect the secrecy of the misappropriated information, eliminate the

unfair advantage obtained by the wrongdoer and reinforce the public policy of commercial

morality.” Gen. Elec. Co. v. Sung, 843 F. Supp. 776, 778 (D. Mass. 1994). “[B]ecause of the

public interest in promoting competition, punitive injunctions are ordinarily inappropriate in

trade secret actions.” Atl. Research Mktg. Sys., Inc. v. Troy, No. CIV.A.07-11576-PBS, 2010

WL 1904849, at *8–9 (D. Mass. May 11, 2010) (quoting Jillian’s Billiard Club of Am., Inc. v.

Beloff Billiards, Inc., 619 N.E.2d 635, 638 (Mass. App. Ct. 1993)); see also Specialized Tech.

Res., Inc. v. JPS Elastomerics Corp., No. HSCV200700200, 2011 WL 1366584, at *16 (Mass.

Super. Feb. 10, 2011), aff’d, 957 N.E.2d 1116 (Mass. App. Ct. 2011) (“[I]njunctions granted to

prevent trade secret violations are not punitive and only rarely are truly permanent, as they must


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be reasonable as to time and scope; what is reasonable depends on the facts of each particular

case.”).

Having considered the four-factor test for a permanent injunction, the Court will not

suspend Neovasc’s TMVI program for any amount of time. The $70 million already awarded by

the jury, together with the enhanced damages granted in this Order, adequately compensate

CardiAQ for its injury. The proposed 18-month suspension would be duplicative of the monetary

relief, and is not warranted given the uncertainty in the TMVI market, the impact the injunction

would have on Neovasc, and the public’s interest in having access to a potentially life-saving

technology.

The first two factors of the injunction analysis ask whether the plaintiff has suffered

irreparable injury from the defendant’s actions and next, whether remedies available at law, such

as monetary damages, are inadequate to compensate for the injury. “The first two of the four

factors are satisfied on a showing of ‘substantial injury that is not accurately measurable or

adequately compensable by money damages.’” CoxCom, Inc. v. Chaffee, 536 F.3d 101, 112 (1st

Cir. 2008) (quoting Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 217 F.3d 8, 13 (1st Cir.

2000)).

As noted earlier, CardiAQ pursued a reasonable royalty theory of damages. At trial, its

expert testified that Neovasc would have agreed to pay CardiAQ $90 million following a

hypothetical negotiation between CardiAQ and Neovasc in 2010. The jury accepted some of this

testimony by awarding CardiAQ $70 million.

The reasonable royalty remedy is imperfect and necessarily inexact. See Bowling v.

Hasbro, Inc., 582 F. Supp. 2d 192, 204–05 (D.R.I. 2008) (noting the “element of approximation

and uncertainty inherent in the reasonable royalty rubric”). It assumes a fiction—that both parties


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would have been willing to negotiate and agree to a royalty—in order to fashion a viable remedy

in a case like this, where there are no other quantifiable damages.

In other cases, plaintiffs have sought a reasonable royalty for defendants’ past use of

trade secrets, and then a permanent injunction to prevent any future use. See, e.g., Language Line

Servs., Inc. v. Language Servs. Associates, Inc., 944 F. Supp. 2d 775, 783 (N.D. Cal. 2013)

(“Language Line clarifies in its response that it seeks a reasonable royalty for past use of trade

secrets . . . and a permanent injunction to prevent future misappropriation . . . .”); RKI, Inc. v.

Grimes, 200 F. Supp. 2d 916, 926 (N.D. Ill. 2002) (“These cases are distinguishable from the

case at hand because this Court did not award any damages for future use of the misappropriated

information, but rather only awarded damages for the use and disclosure of Roll–Kraft’s trade

secrets for the period before the injunction issued.”); cf. Bianco v. Globus Med., Inc., 53 F.

Supp. 3d 929, 932, 938–39 (E.D. Tex. 2014) (“In patent cases in which a permanent injunction is

sought, the Federal Circuit has held that a district court may impose a reasonable royalty on the

defendant for future use of the patented invention in lieu of an injunction.”). Here, however, the

$90 million reasonable royalty requested by CardiAQ did not distinguish between past and future

use of its trade secrets. The $90 million figure approximated the amount Neovasc would have

been willing to pay to use CardiAQ’s trade secrets indefinitely. This future-facing royalty

overlaps with the injunction CardiAQ now seeks. The reasonable royalty is the amount Neovasc

must pay for the right to use CardiAQ’s trade secrets, but the injunction would prevent Neovasc

from using CardiAQ’s trade secrets at all.

Further, to arrive at the $90 million figure, Mr. Wagner made several assumptions,

including that, by misappropriating CardiAQ’s trade secrets and confidential information,

Neovasc obtained an 18 month “head start” on its TMVI project—meaning that but for its


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misappropriation, Neovasc would have been 18 months behind on the development of its TMVI

device. He “assumed that Neovasc could have come up with an equivalent product to CardiAQ’s

device, but it would have taken 18 months longer to do so without using the alleged CardiAQ

trade secrets.” [Tr. Day 8 at 50:15-21]. His reasonable royalty thus placed a value on this 18-

month head start. The requested injunction is premised on the same 18-month head start, and is

therefore duplicative of the monetary relief already awarded. By now asking for Neovasc’s

project to be suspended for 18 months, CardiAQ is trying to have it both ways—it has already

received damages that approximate the value of the 18-month head start to Neovasc, and now it

seeks an injunction that would eliminate the 18-month head start.

The third and fourth factors of the injunction analysis, the balance of the hardships and

the public interest, each weigh against the injunction. First, the balance of the hardships disfavors

granting the injunction. CardiAQ complains that if Neovasc is not enjoined, CardiAQ will have

to compete with Neovasc for hospitals at which to perform studies, and for the attention of

prominent surgeons known as “Key Opinion Leaders.” [ECF No. 517 ¶¶ 15-36]. The parties

dispute whether this is true. Regardless, this potential hardship is far less severe than that

Neovasc would face if the injunction were granted. The Court credits the testimony of Neovasc’s

CEO that dozens of Neovasc employees would be laid off as a result of the injunction, given that

more than half of Neovasc’s workforce is dedicated to the Tiara program. [ECF No. 538-13 ¶¶

31–32]. Moreover, because of Neovasc’s small size and how central the Tiara is to its business,

Neovasc might not remain as a going concern following the 18-month suspension. Id. ¶ 32.

The public would also be disserved by the injunction. As evidenced at trial, Neovasc and

CardiAQ’s prototypes now differ in several respects and it is unknown which one will be most

effective at treating malfunctioning mitral valves. No TMVI device has received regulatory


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approval, and it is impossible to know which device(s) will or will not be approved. By imposing

the 18-month injunction, the Court could potentially delay the progress of the one TMVI device

that works, and thereby keep a lifesaving device off the market for an additional year-and-a-half.

While there is a countervailing interest in protecting trade secrets and disincentivizing trade

secret misappropriation, that interest is largely addressed by the damages Neovasc must pay, and

is outweighed by the public’s interest in getting the most effective TMVI device to the market as

fast as possible.

“An injunction is a drastic and extraordinary remedy, which should not be granted as a

matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010). An

injunction should not be granted where “a less drastic remedy” will suffice. Id. For the reasons

explained above, the Court will not impose the 18-month injunction. The monetary relief already

awarded by the jury, together with the enhanced damages ordered by the Court, largely

compensate CardiAQ for its loss, and both the public interest and balance of the hardships

disfavor the injunction.

In addition to the 18-month suspension, CardiAQ’s motion for injunctive relief also

requests that the Court order the following:

1. That within seven days, Neovasc destroy all information that CardiAQ sent to Neovasc between June 2009 and April 2010, including emails and attachments thereto, CAD files, engineering drawings, animal test results, design history information, as well as any work product that Neovasc generated that incorporates information contained in the foregoing, including the contents of any physical or electronic file that Neovasc may keep regarding CardiAQ, including the electronic CardiAQ folder referenced during trial.

2. That within seven days, Neovasc return to CardiAQ any CardiAQ

prototypes, or portions thereof, that CardiAQ provided to Neovasc and that Neovasc still has in its possession, custody, or control, including but not limited to prototypes fabricated by Neovasc to test any CardiAQ prototype design.


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3. That without the written consent of CardiAQ, Neovasc shall not in any

patent application relating to U.S. Patent No. 8,579,964, prosecute claims covering subject matter that is either described in CardiAQ’s Trade Secret Number 4, or described in claims of U.S. Patent No. 8,579,964 for which the Court determines Dr. Quadri and Mr. Ratz significantly contributed.

[ECF No. 516 ¶¶ 1-4]. The Court hereby approves the first two requests for relief. Neovasc is ordered to destroy

all information that CardiAQ sent to Neovasc between June 2009 and April 2010 and to return to

CardiAQ any CardiAQ prototypes, or portions thereof, that CardiAQ provided to Neovasc and

that Neovasc still has in its possession, custody, or control, including but not limited to

prototypes fabricated by Neovasc to test any CardiAQ prototype designs. Neovasc has no valid

reason to keep this information. To the extent the information is public, which would allow

Neovasc to use it even under the NDA, Neovasc can use public sources to obtain the

information. Neither the public nor CardiAQ has an interest in Neovasc retaining CardiAQ’s

information and prototypes. Regardless of the fact, as Neovasc argues, that the NDA has expired,

Neovasc does not have a right to retain CardiAQ’s confidential information and the injunction is

necessary to “protect the secrecy of misappropriated information, to eliminate the unfair

advantage obtained by the wrongdoer, and to reinforce the public policy of commercial

morality.” Specialized Tech. Res., Inc. v. JPS Elastomerics Corp., No. HSCV200700200, 2011

WL 1366584, at *16 (Mass. Super. Feb. 10, 2011), aff’d, 957 N.E.2d 1116 (Mass. App. Ct.

2011).

The Court will not order the third request for relief. As explained further below, see supra

section IV.c., Mr. Ratz and Dr. Quadri should have been named as co-inventors on the ‘964

Patent—in collaboration with Mr. Lane, they made a significant contribution to the conception of

the invention. The Court, however, cannot broadly extend this ruling to any “claims covering


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subject matter that is either described in CardiAQ’s Trade Secret Number 4 (Tr. Ex. 1157), or

described in claims of U.S. Patent No. 8,579,964.” [ECF No. 516 ¶ 4]. No patent other than the

‘964 Patent was ever at issue in this case, and CardiAQ cites no authority for the proposition that

the Court can interfere with Neovasc’s prosecution of pending and/or hypothetical patent

applications.

That being said, just because this matter has been resolved, and judgment will soon be

entered against Neovasc, Neovasc does not have free rein to claim CardiAQ’s trade secrets and

inventive concepts as its own. Any future TMVI patents that are issued to Neovasc will be

subject to scrutiny under 35 U.S.C. § 256—consistent with the Court’s ruling on the ‘964 Patent,

Mr. Ratz and Dr. Quadri should not be excluded from any patents that they contributed to.

III. Neovasc’s Pending Motions In its two pending motions, Neovasc requests a new trial on damages [ECF No. 522] and

a new trial on CardiAQ’s trade secret claims 4, 5, and 6. [ECF No. 521]. Neovasc claims that

once the jury determined that Neovasc misappropriated some, but not all, of CardiAQ’s trade

secrets, Mr. Wagner’s expert testimony regarding the reasonable royalty became useless and the

jury had no basis for determining damages. In addition, Neovasc argues that the jury’s finding of

misappropriation with respect to trade secret claims 4, 5, and 6 is unsupported by the evidence

and contrary to governing law.

Under Fed. R. Civ. P. 59, following a jury trial, a court may grant a motion for a new trial

“for any reason for which a new trial has heretofore been granted in an action at law in federal

court.” Fed. R. Civ. P. 59(a)(1)(A). The trial court may order a new trial if “the verdict is against

the clear weight of the evidence, is based upon evidence that is false, or resulted from some trial

error and amounts to a clear miscarriage of justice.” Payton v. Abbott Labs, 780 F.2d 147, 152


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(1st Cir. 1985). “[A] district court wields broad legal authority when considering a motion for a

new trial,” but it cannot “displace a jury’s verdict merely because [it] disagrees with it or because

a contrary verdict may have been equally . . . supportable.” Jennings v. Jones, 587 F.3d 430, 436

(1st Cir. 2009) (internal citations and quotations omitted). Absent an error of law, a judge should

only set aside a jury verdict if “it is quite clear that the jury has reached a seriously erroneous

result.” Milone v. Moceri Family, Inc., 847 F.2d 35, 37–38 (1st Cir. 1988) (quotations omitted).

“In reviewing an award of damages, the district court is obliged to review the evidence in

the light most favorable to the prevailing party and to grant remittitur or a new trial on damages

only when the award exceeds any rational appraisal or estimate of the damages that could be

based upon the evidence before it.” Wortley v. Camplin, 333 F.3d 284, 297 (1st Cir. 2003)

(internal quotation marks omitted); see also Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301,

1310 (Fed. Cir. 2009) (“A jury’s decision with respect to an award of damages must be upheld

unless the amount is grossly excessive or monstrous, clearly not supported by the evidence, or

based only on speculation or guesswork.”) (internal quotation marks omitted)). “[T]he jury is

free to select the highest figures for which there is adequate evidentiary support, as long as the

figure remains in the universe of acceptable awards.” Am. Steel Erectors v. Local Union No. 7,

Int’l Ass’n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 815 F.3d 43, 58 (1st

Cir. 2016) (internal citations and quotations omitted).

a. Motion for a New Trial on Damages Most of the arguments raised by Neovasc in its motion for a new trial on damages were

previously rejected, when the Court denied Neovasc’s motion to exclude Mr. Wagner’s

testimony. [ECF No. 418]. In a motion in limine filed on the eve of trial, Neovasc argued that

Mr. Wagner’s testimony on a reasonable royalty should be excluded because he: (1) had no basis


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to assume that the information CardiAQ shared with Neovasc gave Neovasc an 18-month head

start in the development of its Tiara device; (2) inappropriately incorporated financial

information that arose after the date of the hypothetical negotiation; and (3) improperly relied on

Neovasc’s sales of securities to calculate a baseline royalty. [ECF Nos. 344, 346]. The Court

rejected each of these arguments. First, the 18-month head start assumption, which was only one

piece of Mr. Wagner’s larger reasonable royalty analysis, did not warrant excluding Mr.

Wagner’s testimony, given that there was some evidence in the record to support the 18-month

head start assumption, and that CardiAQ intended to present evidence at trial, through fact

witnesses, to establish the facts assumed by Mr. Wagner. [ECF No. 418 at 6-7]. Second, though

Mr. Wagner’s Georgia-Pacific analysis included ex-post evidence, such as the value of the Tiara

in 2015, he correctly calculated a reasonable royalty using a hypothetical negotiation date of

March 2010, the date on which CardiAQ and Neovasc cut ties. Id. at 7-8. Accordingly, while

Neovasc could challenge Mr. Wagner’s use of 2015 data, it did not render his testimony

inadmissible. Lastly, Mr. Wagner properly factored the proceeds from a Neovasc securities sale

into his damages calculation since, unlike in the cases cited by Neovasc, he apportioned the

value of the securities sale between CardiAQ’s and Neovasc’s contributions. Id. at 8-9. The

Court concluded that Neovasc could challenge these three aspects of Mr. Wagner’s opinion at

trial, but that none warranted excluding his testimony. Id. at 6-9.

To the extent Neovasc attempts to rehash any of these arguments in its motion for a new

trial, its efforts are unavailing. CardiAQ presented sufficient evidence at trial to support the 18-

month head start assumption. It took CardiAQ about 20 months to develop the trade secrets at

issue in this case, [Tr. Day 4, 127:16-19, 134:7-25], and Mr. Wagner was justified in assuming it

would take Neovasc approximately the same amount of time. Over the course of the trial, the


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jury heard considerable testimony about the value of CardiAQ’s trade secrets, from which they

could reasonably conclude that possessing them gave Neovasc an 18-month head start. The 18-

month head start was supported by the evidence—namely, CardiAQ’s own development time, as

well as Dr. Ratz’ testimony—and was not based on speculation or guesswork. Likewise, as the

Court has already held, Mr. Wagner could consider data from 2015 to calculate a reasonable

royalty based upon a hypothetical negotiation in 2010. At trial, Mr. Wagner testified as to all of

the Georgia Pacific factors, several of which involve ex-post evidence, including: the “current

popularity” of the infringing product, the “established profitability” of the product, and the

“extent to which the infringer has made use of the invention.” Georgia-Pac. Corp. v. U.S.

Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970), modified sub nom. Georgia-Pac.

Corp. v. U.S. Plywood-Champion Papers, Inc., 446 F.2d 295 (2d Cir. 1971); see also Lucent, 580

F.3d at 1333 (“[T]he hypothetical negotiation analysis ‘permits and often requires a court to look

to events and facts that occurred thereafter and that could not have been known to or predicted

by the hypothesized negotiators.’”) (quoting Fromson, 853 F.2d at 1575).

The one new argument raised by Neovasc in its motion for a new trial on damages, which

was not raised in its pre-trial motion to exclude Mr. Wagner’s testimony, is that the jury’s split

verdict on damages—finding that Neovasc misappropriated trade secrets 4-6, but not 1-3—

renders Mr. Wagner’s testimony useless. According to Neovasc, there was not evidence from

which the jury could determine the value of trade secrets 4 and 6, since Mr. Wagner did not

testify as to the reasonable royalty for each individual trade secret.3 CardiAQ responds that it

presented evidence that trade secrets 4 or 6 would command a $90 million royalty. They point to

Mr. Wagner’s testimony, in which he stated that the combination of Trade Secrets 1 and 2, as

3 Mr. Wagner did not assign any value to trade secret 5, the Mandrel. [Tr. Day 8 at 68:11-17].


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well as the individual Trade Secrets 3, 4, and 6 were each worth $90 million. [Tr. Day 8, 16:22-

25].4 They also point to Mr. Ratz’s testimony explaining that trade secrets 1 and 2 together, and

trade secrets 3, 4, and 6 individually, all had the same value. [Tr. Day 4, 88:5-22].

Based on the evidence before it, including Mr. Wagner and Mr. Ratz’ testimony, the jury

rationally appraised the value of the misappropriated trade secrets, and Neovasc has not

demonstrated that it is entitled to a new trial on damages. Mr. Wagner valued the trade secrets

based on the challenges they solved and the head start they gave to Neovasc. It was not

erroneous for Mr. Wagner to assume, or the jury to conclude, that the combination of trade

secrets 1 and 2, as well as the individual trade secrets 3, 4, and 6 solved the same challenges and

gave Neovasc the same head-start. Whether in the form of physical prototypes (trade secrets 1-

3), design features (trade secret 4), or historical developments (trade secret 6), each disclosed the

key inventive concepts behind CardiAQ’s TMVI device, including its anchoring system, and

how CardiAQ had gone about solving the challenges facing TMVI developers at the time.

b. Motion for a New Trial on Trade Secrets 4, 5, and 6 As the Court instructed the jury, for each trade secret claim, CardiAQ needed to prove by

a preponderance of the evidence the following three elements: (1) that CardiAQ’s information

was a trade secret; (2) that CardiAQ took reasonable steps to preserve the secrecy of its

information; and (3) that Neovasc used the trade secret through improper means. [Day 13 Tr. at

165:2-9]. In its motion for a new trial on trade secrets 4-6, Neovasc does not take issue with the

Court’s jury instructions. Rather, Neovasc contends that the “[t]he jury’s finding of

misappropriation with respect to TS Claims 4, 5, and 6 is unsupported by the evidence and

4 In his expert report, which was provided to Neovasc before trial, Mr. Wagner also stated that he was assigning equal value to trade secrets 1 and 2 together; trade secret 3 alone; trade secret 4 alone; and trade secret 6 alone. [ECF No. 363-2 at ¶ 13].


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contrary to governing law.” [ECF No. 521 at 1]. Neovasc’s principal argument is that CardiAQ

did not prove that trade secrets 4, 5, and 6 were in fact trade secrets, as defined under

Massachusetts law and in the Court’s instructions.5

First, Neovasc argues that it is entitled to a new trial on trade secret number 4 since there

was insufficient evidence to show that trade secret 4 was either a secret or a unified process, as is

required of all trade secrets under Massachusetts law. Trade secret 4 described CardiAQ’s TMVI

device generally. Trade secret 4 consists of:

A transcatheter replacement mitral valve prosthesis design that includes an expandable metal frame for supporting a tricuspid, one-way valve, the expandable metal frame sized for placement in a human native mitral valve space, where the prosthesis is configured for mitral valve implantation without relying exclusively on radial force but rather by engaging the native mitral valve annulus on the atrial side of the native mitral valve and by anchoring the prosthesis on the ventricular side of the native mitral valve annulus, where the prosthesis includes one or more of the following

5 In its jury instructions, the Court defined a trade secret as follows:

A trade secret may consist of any formula, pattern, device or combination of information which is used in business and which gives an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for machine or other device, or a list of customers. A trade secret is a process or device for continuous use in the operation of the business. It differs from other secret information in a business in that it is not simply information as to a single or ephemeral event in the conduct of the business, as, for example, the amount or other terms of a secret bid for a contract or the salary of certain employees or the date fixed for the announcement of a new policy or for bringing out a new model or the like. The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in the industry cannot be appropriated by one as a secret. A trade secret can exist in a combination of characteristics and components, even if some or all of the characteristics and components are in the public domain, as long as the unified process, design, and operation of the combination constitutes a unique combination that is a trade secret.

[Tr. Day 13 at 165-66].


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additional features: a. Ventricular Anchors that Extend Between the Chordae, Capture the Native Leaflets, and Engage the Ventricular Side of the Native Mitral Annulus . . . b. Variable Strut Dimensions . . . c. Lower Atrial Profile . . . d. Larger Ventricular Cross-Sectional Dimension . . .e. V-Shaped Atraumatic Anchors . . . f. Mushroom-Shaped Locking Tabs

[Tr. Ex. 1157 at 14-17]. Neovasc’s motion for a new trial focuses on the six features listed at the

end of trade secret 4. Neovasc claims that CardiAQ did not prove that these features were secret

or that they constituted a unified process. According to Neovasc, “CardiAQ did not merely fail to

establish secrecy of the individual features: it ultimately agreed that they were not secret,” and

further that “CardiAQ offered no evidence that combining some or all of the features resulted in

a unified process.” [ECF No. 521 at 5].

Neovasc’s motion for a new trial takes the six features listed at the end of trade secret

number 4 out of context. CardiAQ did not claim that these features were themselves trade

secrets. Instead, trade secret 4 consists of CardiAQ’s TMVI design, which contains one or more

of the six listed features. As the Court instructed the jury without objection, “A trade secret can

exist in a combination of characteristics and components, even if some or all of the

characteristics and components are in the public domain, as long as the unified process, design,

and operation of the combination constitutes a unique combination that is a trade secret.” [Tr.

Day 13 at 166:4-9]. Though sugar is not a trade secret, a secret recipe containing sugar can be.

Likewise, though mushroom-shaped locking tabs (one of the six listed features) may have been

well-known in the industry and therefore not a trade secret, the jury could reasonably find that a

TMVI device containing mushroom-shaped locking tabs was a trade secret.

Neovasc presented evidence that the individual elements of trade secret 4 were publically

known, but not in the context of a fully conceptualized TMVI device. For example, Neovasc’s

expert Mr. Leinsing cited to a patent on non-heart valve stents to show that variable strut


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dimension was publicly known [Tr. Day 11, 109:2-12; Ex. 2075], to a patent for a transcatheter

aortic valve to show that V-shaped, atraumatic anchors were publicly known [Tr. Day 11,

110:11-24; Ex. 2086], and to a patent on a stomach implant and aortic device to show that

mushroom-shaped locking tabs were publicly disclosed. [Tr. Day 11, 110:25-111:18; Exs. 2079

and 2091]. Neovasc did not show, however, that these elements were included or combined in a

previously disclosed transcatheter mitral valve device. CardiAQ revealed to Neovasc TMVI

prototypes that embodied all of the features identified in CardiAQ’s Trade Secret 4, [Tr. Day 4,

86:14-16; Tr. Day 7, 12:17-17:21], and the jury could reasonably conclude that a TMVI device

with these features was both a secret and a unified process.6

Neovasc is also not entitled to a new trial on trade secret number 5. Trade secret number

5 was the CardiAQ Mandrel, a tool created by CardiAQ to help construct its TMVI device.

During their business relationship, and pursuant to the NDA, CardiAQ gave the Mandrel to

Neovasc, so that Neovasc could build CardiAQ’s prototypes. Krista Neale, a Neovasc project

engineer, admitted to using the Mandrel on an unrelated project after CardiAQ had cut ties with

Neovasc. [Neale Depo. 115:04-117:18].

6 In support of its motion for a new trial on trade secret 4, Neovasc cites several trade secret cases that were decided on summary judgment, after the defendant challenged the adequacy of plaintiff’s trade secret disclosures. In Sutra, Inc. v. Iceland Express, EHF for example, Judge Woodlock determined that plaintiff’s trade secret disclosure, made during discovery, was “far too open textured to meet the test for an identifiable trade secret,” where the plaintiff identified its alleged trade secret as the “operation, appearance, features and functionality” of its computer software. No. CIV.A. 04-11360-DPW, 2008 WL 2705580, at *4 (D. Mass. July 10, 2008). Likewise, in Sit-Up Ltd. v. IAC/InterActiveCorp. the court granted summary judgment where the plaintiff failed to “describe the secret with sufficient specificity that its protectability [could] be assessed and to show that its compilation [was] unique.” No. 05 CIV. 9292 (DLC), 2008 WL 463884, at *10 (S.D.N.Y. Feb. 20, 2008). On summary judgment, Neovasc could have, but chose not to, challenge the adequacy of CardiAQ’s trade secret disclosures. CardiAQ identified its trade secrets in August 2015, and Neovasc waited until after trial to argue that CardiAQ’s disclosures were somehow inadequate. In any event, CardiAQ identified trade secret 4 with sufficient detail, describing its TMVI design with particularity.


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Neovasc claims that it is entitled to a new trial on trade secret number 5 because CardiAQ

ascribed no value to the Mandrel and because CardiAQ disclosed the Mandrel in an April 2010

patent application. The patent application, however, did not provide as much information as

Neovasc received by holding the physical Mandrel and by viewing CAD files for the Mandrel

that were not included in any patent applications. [Tr. Day 9 at 109:6-110:23; Tr. Ex. 1163].

Further, while it is true that the Mandrel was not included in Mr. Wagner’s reasonable royalty

calculation, the jury could still find that it was a valuable trade secret, given that it was covered

by the NDA, not publically available, and necessary to construct CardiAQ’s device.

Lastly, Neovasc is not entitled to a new trial on trade secret number 6. Trade secret

number 6 was the development history of CardiAQ’s TMVI device. In its trade secret disclosure,

CardiAQ identified trade secret number 6 as:

The development history of CardiAQ’s transcatheter replacement mitral valve prosthesis design, including the following: CardiAQ created an aortic valve prosthesis prototype designated as Rev. 4, which CardiAQ evaluated and tested. CardiAQ created a mitral valve prosthesis design designated as Rev. A. That Rev. A design evolved into a prototype designated as Rev. B, which CardiAQ evaluated and tested. That Rev. B design evolved into a prototype designated as Rev. C, which CardiAQ evaluated and tested. That Rev. C design evolved into a prototype designated as Rev. D, which CardiAQ evaluated and tested. That Rev. D design evolved into prototypes designated as the Rev. E series (including Rev. E2 through Rev. E4), which CardiAQ evaluated and tested.

[Tr. Ex. 1157 at 18]. According to Neovasc, this development history is not protectable as a trade

secret because it does not satisfy the continuous use or unified process requirements under

Massachusetts law. In addition, Neovasc claims that CardiAQ did not show that Neovasc

improperly used or disclosed CardiAQ’s development history.

Before and during its relationship with Neovasc, CardiAQ modified the design of its

TMVI device. At the outset of the parties’ relationship, both Mr. Ratz and Dr. Quadri told


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Neovasc about CardiAQ’s earliest TMVI work. [Tr. Day 3, 21:2-8; Tr. Ex. 1158 (showing Rev.

A at p. 12, and Rev. B at p. 11)]. During their relationship, CardiAQ asked Neovasc to build

frames with different designs, as CardiAQ modified the anchoring mechanism and other features

of its device.

The jury, which was instructed on the Massachusetts continuous use requirement [Day 13

Tr. at 165:17-19], had a sufficient basis to conclude that CardiAQ continues to use trade secret 6

in the operation of its business. As it develops its TMVI device and works towards FDA

approval, CardiAQ continues to use its past discoveries about what works and what does not. Its

development history has influenced the current design of its TMVI device, and will likely

influence any future modifications to it. [See, e.g., Tr. Day 4 at 110:10-111:4] (“Even as we

encounter new challenges, if we look back and say, ‘How are we going to approach that, here is

what we’ve done before,’ we know what not to do as we encounter something else.”). Likewise,

the jury, which was also instructed on Massachusetts’ unified process requirement [Day 13 Tr. at

166:4-9], could reasonably conclude that CardiAQ’s development history constitutes a unified

process. The development history described in trade secret 6 was for a single product. CardiAQ’s

Revisions A through E were each steps in a defined progression of ideas. Each step informed the

next, and there was a single purpose for the process—creating a functional TMVI device.

Finally, CardiAQ presented sufficient evidence that Mr. Lane used both the dead ends and

breakthroughs in CardiAQ’s development history to shape the design of the Tiara and to

accelerate its development. As Neovasc itself admitted in a 2010 shareholder presentation, its

“[i]ntimate understanding of what has and has not worked so far in the development of

(percutaneous) valves” gave it a competitive advantage over other TMVI developers. [Tr. Ex.


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608 at 4; see also Ex. 384 at 15] (“The Tiara program has benefited enormously from this pool of

experience and talent that has evolved as we have worked with our partners.”).7

IV. Inventorship The one issue that remains outstanding is CardiAQ’s inventorship claim. On November

12, 2013, the United States Patent and Trademark Office issued U.S. Patent No. 8,579,964 (the

“‘964 Patent”) to Neovasc. The ‘964 Patent, directed to a method of anchoring a valve into the

heart, lists Randy Lane and Colin Nyuli, both Neovasc employees, as the inventors. The ‘964

Patent contains one independent claim (Claim 1) and 27 dependent claims (Claims 2-28).

CardiAQ contends that Dr. Quadri and Mr. Ratz invented the subject matter of independent

Claim 1 and dependent Claims 2 through 28 of the ‘964 Patent, either by themselves or in

collaboration with Mr. Lane and Mr. Nyuli, and seeks an order, pursuant to 35 U.S.C. § 256,

requiring Neovasc and the Director of the United States Patent and Trademark Office to take all

steps necessary to correct the named inventor on the ‘964 Patent.

a. Legal Standard 35 U.S.C. Section 256 creates a cause of action in the district courts to correct the non-

joinder of an inventor on a patent. Under Section 256, a district court “may order correction of

the patent on notice and hearing of all parties concerned and the Director shall issue a certificate

7 To the extent Neovasc seeks a new trial based on based on alleged inconsistencies in the trade secret verdict, its arguments here are also unavailing. As this Court instructed the jury, CardiAQ’s inability to prove misappropriation of one trade secret “does not mean that it has failed to do so with any of its other alleged trade secrets.” [Tr. Day 13, 164:16-165:1]. The jury’s determination of no misappropriation could hinge on one of any number of details (disclosure, use, continuous use, public disclosure, etc.), which are unique between each trade secret. For instance, the jury could have found that trade secrets 1-3 (the Rev. C, D, and E design prototypes) were no longer in continuous use, since CardiAQ has replaced them with updated prototypes. Each trade secret claim hinged on distinct facts, and the jury’s split verdict reflects an attentive and deliberative process.


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accordingly.” 35 U.S.C. § 256. “Conception is the touchstone to determining inventorship.” Fina

Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed. Cir. 1997). Accordingly, “each joint

inventor must generally contribute to the conception of the invention.” Ethicon, Inc. v. U.S.

Surgical Corp., 135 F.3d 1456, 1460 (Fed. Cir. 1998). A co-inventor does not need to make a

contribution to every claim of a patent. Id. Nor does a co-inventor need to contribute to the

conception of all the limitations in a single claim. Eli Lilly & Co. v. Aradigm Corp., 376 F.3d

1352, 1361 (Fed. Cir. 2004). Rather, a joint inventor’s contribution must be “not insignificant in

quality, when that contribution is measured against the dimension of the full invention.” Bard

Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 776 F.3d 837, 845 (Fed. Cir. 2015)

(quoting Fina Oil & Chem. Co., 123 F.3d at 1473), cert. denied, 136 S. Ct. 189 (2015), abrogated

on other grounds by Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923 (2016). Each joint

inventor needs to “perform only a part of the task which produces the invention.” Ethicon, Inc.,

135 F.3d at 1460; see also Vanderbilt Univ. v. ICOS Corp., 601 F.3d 1297, 1303 (Fed. Cir. 2010)

(“[T]he qualitative contribution of each collaborator is key—each inventor must contribute to the

joint arrival at a definite and permanent idea of the invention as it will be used in practice.”)

(quoting Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1229 (Fed. Cir. 1994)). To

be a joint inventor, “[o]ne need not alone conceive of the entire invention, for this would obviate

the concept of joint inventorship.” Fina Oil & Chem. Co., 123 F.3d at 1473.

Joint inventorship requires collaboration. “[C]o-inventors must collaborate and work

together to collectively have a definite and permanent idea of the complete invention.”

Vanderbilt Univ., 601 F.3d at 1308. The inventors must “have some open line of communication

during or in temporal proximity to their inventive efforts.” Eli Lilly & Co., 376 F.3d at 1359.

Patents issued by the USPTO are presumed to name the correct inventors and, as a result, “the


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burden of showing misjoinder or nonjoinder of inventors is a heavy one and must be proved by

clear and convincing evidence.” Bard Peripheral Vascular, Inc., 776 F.3d at 845 (internal

quotation marks omitted). Inventorship is a question of law. General Elec. Co. v. Wilkins, 750

F.3d 1324, 1329 (Fed. Cir. 2014). Nonetheless, the “determination of whether a person is a joint

inventor is fact specific, and no bright-line standard will suffice in every case.” Fina Oil and

Chem. Co., 123 F.3d at 1473.

Alleged co-inventors “must prove their contribution to the conception of the invention

with more than their own testimony.” Gemstar-TV Guide Int’l., Inc. v. Int’l Trade Comm’n, 383

F.3d 1352, 1382 (Fed Cir. 2004). “The putative inventor must first provide credible testimony,”

after which the Court applies a rule-of-reason analysis to determine whether the co-inventor’s

testimony has been sufficiently corroborated. General Elec. Co., 750 F.3d at 1330. Corroborating

evidence can include “contemporaneous records, oral testimony from someone other than the

inventor, or other circumstantial evidence.” Univ. of Utah v. Max-Planck-Gesellschaft Zur

Foerderung Der Wissenschaften e.V., No. 11-10484-PBS, 2015 WL 5698398, at *5 (D. Mass.

Sept. 28, 2015), appeal dismissed (Dec. 18, 2015).

b. The ‘964 Patent Mr. Lane first sketched an idea for what would become the Tiara on October 20, 2009,

and he first communicated to patent counsel his ideas for a transcatheter mitral valve

replacement device in December 2009. [Tr. Day 9, 107:19-108:8]. On May 5, 2010, Mr. Lane

and Neovasc filed provisional patent application No. 61/331,799, claiming the Tiara design [Tr.

Day 9, 107:19-108:8; Tr. Ex. 565]. On April 28, 2011 Mr. Lane and Neovasc filed non-

provisional application No. 13/096,572, which claimed priority to the May 5, 2010 application,


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as well as to two intermittent provisional applications (Nos. 61/ 393,860 and 61/414,879). [Tr.

Ex. 565]. On November 12, 2013, application No. 13/096,572 issued as the ‘964 Patent. Id.

Claim 1 of the ‘964 Patent claims a method of anchoring a prosthetic valve in a patient’s

heart, said method comprising:

providing the prosthetic valve, wherein the prosthetic valve comprises an anchor having an atrial skirt, an annular region, a ventricular skirt, and a plurality of valve leaflets, wherein the ventricular skirt comprises a first trigonal anchoring tab disposed on an anterior portion of the ventricular skirt, wherein the anchor has a collapsed configuration for delivery to the heart and an expanded configuration for anchoring with the heart; positioning the prosthetic valve in the patient’s heart; expanding the atrial skirt radially outward so as to lie over a superior surface of the patient’s native mitral valve, and anchoring the atrial skirt against a portion of the atrium; radially expanding the annular region of the anchor to conform with and to engage the native mitral valve annulus; anchoring the first trigonal anchoring tab against a first fibrous trigone on a first side of an anterior leaflet of the native mitral valve, such that the anterior leaflet and adjacent chordae tendineae are captured between the trigonal anchoring tab and an anterior surface of the anchor; and radially expanding the ventricular skirt thereby displacing the native mitral valve leaflets radially outward.

[ECF No. 293-11 at 60-61].

c. Discussion The parties agree that before getting to the inventorship question, the Court must engage

in claim construction. The parties’ chief dispute, which was a central theme at trial, is the

meaning of “trigonal anchoring tab” mentioned in Claim 1. Claim 1 describes a prosthetic valve,

“wherein the ventricular skirt comprises a first trigonal anchoring tab” and involves “anchoring

the first trigonal anchoring tab against a first fibrous trigone on a first side of an anterior leaflet


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of the native mitral valve.” According to CardiAQ, the term “trigonal anchoring tab” means a tab

capable of anchoring on a fibrous trigone when deployed. [ECF No. 512 at 2]. According to

Neovasc, it means a tab designed for anchoring on a fibrous trigone when deployed. [ECF No.

535 at 9].

The following is a picture of the mitral valve from the ‘964 Patent:

The figure shows that the mitral valve has two fibrous trigones, a left fibrous trigone and a right

fibrous trigone. “AN” points to the mitral valve annulus. At trial and in their inventorship briefs,

the parties have disputed whether the fibrous trigones are part of the native mitral valve annulus

or not. According to Neovasc, the fibrous trigones are adjacent to, but separate from, the native

mitral valve annulus. This is consistent with the ‘964 Patent, which stated that the fibrous

trigones consist of “two regions adjacent an anterior portion of the annulus.” [Tr. Ex 115 at 53].

CardiAQ counters that that the fibrous trigones are a continuous part of the annulus, and not

separate from it. At trial, CardiAQ’s expert, Dr. Bavaria, testified that fibrous trigones are part of

the native mitral annulus. [Tr. Day 6 at 34:23-35:22].

The Court does not need to resolve this anatomical dispute in order to define Claim 1.

Regardless of whether the fibrous trigones are part of the annulus or not, the “trigonal anchoring

tab” mentioned in Claim 1 is designed to anchor specifically on the fibrous trigones. In view of


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the ‘964 Patent claim language and specification, “Anchoring the first trigonal anchoring tab

against a first fibrous trigone on a first side of an anterior leaflet of the native mitral valve”

means “positioning the trigonal anchoring tab in order to anchor it against a fibrous trigone on

either the left or right side of the native anterior leaflet.” CardiAQ’s proposed construction would

read the word “trigonal” out of Claim 1. A “trigonal anchoring tab” that anchors anywhere other

than on a fibrous trigone is not described in the ‘964 patent, and CardiAQ’s proposed

construction is unduly broad. In re Man Mach. Interface Techs. LLC, 822 F.3d 1282, 1285 (Fed.

Cir. 2016) (finding patent examiner erred in construing “thumb switch” broadly as “merely

requir[ing] that a switch . . . be capable of being enabled/activated by a thumb but . . . not

preclud[ing] another digit, i.e. index finger”).

Even accepting this proposed claim construction, however, as well as all of the others

proposed by Neovasc, CardiAQ has still demonstrated, by clear and convincing evidence, that it

contributed to the conception of the ‘964 Patent and that Mr. Ratz and Dr. Quadri should be

added as co-inventors.

While it is true that CardiAQ did not share with Neovasc any TMVI prototypes

containing anchors specifically designed to anchor on the fibrous trigones, the prototypes that

CardiAQ did discuss and share with Neovasc had equally spaced anchors, intended to anchor on

the annulus generally. Given the number of anchors and size of the fibrous trigones, it was likely

that at least one of CardiAQ’s anchoring tabs would anchor against a fibrous trigone, but this

was more a coincidence than on purpose.

A joint inventor, however, “does not need to contribute to every single element of every

single claim in the patents—‘some’ contribution is sufficient.” Rothschild v. Cree, Inc., 711 F.

Supp. 2d 173, 204 (D. Mass. 2010) (citing 35 U.S.C. § 116); see also Ethicon, Inc., 135 F.3d at


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1460 (each joint inventor “needs to perform only a part of the task which produces the

invention”). “All inventors, even those who contribute to only one claim or one aspect of one

claim of a patent, must be listed on [a] patent.” Vapor Point LLC v. Moorhead, 832 F.3d 1343,

1348–49 (Fed. Cir. 2016). To be a joint inventor, an individual must make a contribution to the

claimed invention “that is not insignificant in quality, when that contribution is measured against

the dimension of the full invention.” Fina Oil and Chem. Co., 123 F.3d at 1473.

Accordingly, even if Neovasc independently conceived of trigonal anchoring tabs

designed to anchor on the fibrous trigone, CardiAQ still made a significant contribution to the

conception of the ‘964 Patent. CardiAQ retained Neovasc to facilitate its TMVI development.

During their ten-month business relationship, CardiAQ collaborated with Neovasc and shared

with Neovasc the designs, prototypes, and development history of its device. Mr. Lane admits

that he had never designed a TMVI device prior to working on the CardiAQ device, and his

earliest sketches of a TMVI device do not appear until October 2009, months after he started

working with Mr. Ratz and Dr. Quadri. [Tr. Day 9 at 60:25-61:3; Ex. 346 at 148]. The

progression of TMVI ideas sketched in Mr. Lane’s notebook reflects a trend towards the designs

of CardiAQ: Mr. Lane began in October 2009 with a grommet-style TMVI device with no

distinct anchors, and he progressed to extended vertical anchors in March 2010, after Mr. Lane

first received the Rev E design earlier, in February 2010. [Compare Ex. 346 at 148 with Ex. 346

at 160, 163; Tr. Day 9, 83:16-86:19]. Considering this sequence of events, as well as the

similarities between the prototypes CardiAQ shared with Neovasc and the features of Claim 1,

CardiAQ has shown by clear and convincing evidence that it unwittingly contributed to Mr.

Lane’s inventive process. Even if Mr. Lane contributed some new ideas to the ‘964 Patent, Dr.


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Quadri and Mr. Ratz performed “a part of the task which produces the invention.” See Ethicon,

Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed. Cir. 1998).

Mr. Ratz and Dr. Quadri’s contribution to the invention and collaboration with Neovasc

is corroborated not only by their own testimony, but also the testimony of Mr. Lane, the email

communications between the parties [Tr. Exs. 1158-1219], and the physical prototypes of

CardiAQ’s devices still in Neovasc’s possession. [Tr. Exs. 331-333]; see Gemstar-TV Guide

Int’l., Inc. v, Int’l Trade Comm’s, 383 F.3d 1352, 1382 (Fed Cir. 2004) (alleged co-inventors

“must prove their contribution to the conception of the invention with more than their own

testimony”); Eli Lilly & Co., 376 F.3d at 1359 (noting that to establish collaboration, joint

inventors must “have some open line of communication during or in temporal proximity to their

inventive efforts”). The ‘964 Patent claims numerous features that were included in the

prototypes and designs Mr. Ratz and Dr. Quadri shared with Neovasc, including a device that is

delivered to a patient’s heart via a catheter, either through the apex of the heart or through the

femoral vein; that once positioned in the patient’s native mitral valve, is allowed to expand and

engages the native anatomy on both the atrial and ventricular sides of the annulus and includes

an anterior side and a posterior side; and whose anchors extend between the native chordae

tendinae, behind the free edge of the native mitral valve leaflets, and engage onto the native

mitral annulus.

Neovasc relies on the prosecution history of the ‘964 Patent to argue that anchoring on

the fibrous trigones was the key inventive aspect of the patent, and that because CardiAQ did not

contribute to this novel part of the patent, it should not be named as a co-inventor. In a first

Office Action dated June 4, 2013, the examiner found independent Claim 1 of the ‘964 Patent

anticipated by a prior art reference, US Patent Publication No. 2006/0259136 to Nguyen et al


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(“Nguyen”), that disclosed individual features similar to the elements of Claim 1. [Tr. Ex. 2779

at 1037-1045]. In response, Neovasc informed the Patent Office, and the Patent Office agreed,

that the prior art reference did not teach “securing an anchoring tab against a first fibrous

trigon[e].” [Ex. 2779 at 1085]. This, however, was not the only argument made by Neovasc and

accepted by the Patent Office. In addition, Neovasc noted that the prior art disclosed the

elements of Claim 1 in the context of a transcatheter aortic valve replacement device, not a

mitral valve device. As Neovasc wrote to the Patent Office in response to the June 4, 2013 Office

Action, “Nguyen discloses prosthetic valve for treating aortic stenosis or aortic regurgitation

(para 001). Thus it is clear that Nguyen’s prosthetic valve is implanted in the patient’s aortic

valve not the mitral valve as currently claimed. Nowhere in Nguyen is there teaching or

suggestion that Nguyen’s prosthetic valve is implanted in the mitral valve. In fact terms such as

‘mitral valve,’ ‘chordae tendinae,’ ‘atrium,’ and ‘trigone’ do not even appear in Nguyen’s

specification.” Id. at 1080-81. The Patent Office agreed, withdrawing its rejection of Claim 1 in

part because “Nguyen falls to teach valve that engages native mitral valve annulus . . . .” Id. at

1085. Thus, the prior art not only lacked trigonal anchoring, but it also lacked a transcathetic

mitral valve—exactly what CardiAQ shared with Neovasc—that engaged the native mitral valve

annulus.

Neovasc also claims that a single prior art reference called Chau, a patent for a prosthetic

mitral valve, disclosed all of the elements of the ‘964 patent contributed by CardiAQ. [ECF No.

535 at 5-6]. The parties agree, however, that the Chau reference was not public at the time Dr.

Quadri and Mr. Ratz worked with Mr. Lane. Chau therefore does not detract from CardiAQ’s

contribution to the ‘964 Patent. At the time Dr. Quadri and Mr. Ratz collaborated with Mr.

Lane—sharing designs and prototypes of CardiAQ’s TMVI device—they were not “merely


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explain[ing] . . . well-known concepts and/or the current state of the art.” Pannu v. Iolab Corp.,

155 F.3d 1344, 1351 (Fed. Cir. 1998). Rather, in far more detail than they had ever made public,

Dr. Quadri and Mr. Ratz shared with Neovasc the inventive process behind their TMVI project.

In the context of 2009, when no one had ever built a successful transcatheter mitral valve device,

Dr. Quadri and Mr. Ratz gave Neovasc a front-row view of CardiAQ’s TMVI development,

thereby contributing to the conception of the ’964 Patent.

V. Pro Hac Vice Motions

On October 19, 2016, Neovasc filed motions and a supporting memorandum [ECF Nos.

571-574] seeking the Pro Hac Vice admission of three additional attorneys. CardiAQ opposes

the admission of these attorneys on grounds wholly unrelated to their fitness or qualifications.

Because this Memorandum and Order resolves all of the other pending motions in the case,

thereby effectively ending this litigation in the District Court, there is no reason for any attorney

to “practice in this court” in this “particular case,” as required by Local Rule 83.5.3. The pending

motions for Pro Hoc Vice admission will therefore be denied as moot.

VI. Conclusion

For the reasons stated herein:

1. CardiAQ’s motion for enhanced damages [ECF No. 513] is GRANTED IN PART and

Neovasc is ordered to pay $21,000,000 in enhanced damages;

2. CardiAQ’s motion for injunctive relief [ECF No. 516] is GRANTED IN PART and the

Court orders that:

a. Within 7 days of this Order, Neovasc must destroy all information that CardiAQ

sent to Neovasc between June 2009 and April 2010, including emails and

attachments thereto, CAD files, engineering drawings, animal test results, design


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history information, as well as any work product that Neovasc generated that

incorporates information contained in the foregoing, including the contents of any

physical or electronic file that Neovasc may keep regarding CardiAQ, including

the electronic CardiAQ folder referenced during trial (see Tr. Day 9 (Marko),

105:1-20; Ex. 1486 at 106:14-19). Neovasc must certify in writing that it has

complied with this paragraph of the Order.

b. Within 7 days of this Order, Neovasc must return to CardiAQ any CardiAQ

prototypes, or portions thereof, that CardiAQ provided to Neovasc and that

Neovasc still has in its possession, custody, or control, including but not limited to

prototypes fabricated by Neovasc to test any CardiAQ prototype design.8

3. Neovasc’s motion for a new trial on damages [ECF No. 522] is DENIED;

4. Neovasc’s motion for a new trial on trade secrets 4-6 [ECF No. 521] is DENIED;

5. CardiAQ has shown by clear and convincing evidence that Dr. Quadri and Mr. Ratz

contributed to the conception of U.S. Patent No. 8,579,964 and the Court therefore orders

that Dr. Quadri and Mr. Ratz be added as inventors of U.S. Patent No. 8,579,964; and

6. Neovasc’s motions for the Pro Hac Vice admission of new attorneys [ECF Nos. 571-573]

are DENIED as MOOT.

So Ordered.

October 31, 2016 /s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

8 Paragraphs a and b shall not apply to materials produced in, or generated by, this lawsuit and maintained by counsel of record or any other third party permitted by the Protective Order entered in this case [ECF No. 92] and used in accordance with that Order.


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UNITED STATES DISTRICT COURT DISTRCT OF MASSACHUSETTS


Plaintiff,


Defendants.

* * * * * * * * * * * *


JUDGMENT

BURROUGHS, D.J. On June 6, 2014, Plaintiff CardiAQ Valve Technologies, Inc., n/k/a Edwards

Lifesciences CardiAQ LLC (“Plaintiff”), brought suit against Defendants Neovasc, Inc., and

Neovasc Tiara Inc. (“Defendants”) for (1) Correction of Inventorship, (2) Breach of Contract, (3)

Breach of the Implied Covenant of Good Faith and Fair Dealing (or Breach of the Duty of

Honest Performance), (4) Fraud, (5) Misappropriation of Trade Secrets, (6) Unfair and Deceptive

Trade Practices, and (7) Injunctive Relief. [ECF No. 64]. On February 1, 2016, Defendants

moved for Summary Judgment on the Correction of Inventorship, Fraud, and Unfair and

Deceptive Trade Practices causes of action. [ECF No. 290]. This Court granted Defendants

motion as to the Fraud claim, and denied the motion as to both the Correction of Inventorship

and Unfair and Deceptive Trade Practices claims. [ECF No. 417].

The remaining causes of action came for trial before the Court and a jury, Honorable

Allison D. Burroughs United States District Judge, presiding. The jury was instructed and, on

May 19, 2016, the jury rendered its verdict as set forth in the signed verdict form [ECF No. 483].


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Following the verdict, CardiAQ’s motions for injunctive relief and enhanced damages [ECF Nos.

513, 516] were granted in part, and Neovasc’s motions for a new trial [ECF Nos. 521, 522] were

denied. [ECF No. 583].

AND NOW, this 21st day of November, 2016,

IT IS ORDERED THAT:

1. Judgment is hereby entered in favor of Plaintiff in part, and in favor of

Defendants in part, as to the Misappropriation of Trade Secrets claim set forth in Plaintiff’s

Seconded Amended Complaint. Judgment is entered in favor of Plaintiff and against Defendants

as to Plaintiff’s trade secret claims numbered 4, 5, and 6. See [ECF No. 483] (jury verdict form).

Judgment is entered in favor of Defendants and against Plaintiff as to Plaintiff’s trade secret

claims numbered 1, 2, and 3. See id. Plaintiff is awarded reasonable royalty damages against

Defendants in the amount of seventy million dollars ($70,000,000) for trade secret claims

number 4, 5, and 6.

2. Judgment is hereby entered in favor of Plaintiff and against Defendants as to the

claim for Breach of Contract set forth in the Second Amended Complaint, and Plaintiff takes no

damages under this claim;

3. Judgment is hereby entered in favor of Plaintiff against Defendants as to the claim

for Breach of the Implied Covenant of Good Faith and Fair Dealing (or Breach of the Duty of

Honest Performance) with respect to the Non-Disclosure Agreement, as set forth in the Second

Amended Complaint, and Plaintiff takes no damages under this claim;

4. Judgment is hereby entered in favor of Plaintiff and against Defendants as to the

claim for Correction of Inventorship of United States Patent No. 8,579,964 (“the ’964 patent”)

pursuant to 35 U.S.C. § 256, as set forth in the Second Amended Complaint. The Director of the


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United States Patent and Trademark Office is hereby ordered to add Jeremy Brent Ratz and

Arshad Quadri as inventors on the ’964 patent, and Defendants are ordered to cooperate with

Plaintiff to effectuate the change in inventorship, including executing or filing any necessary

Petitions to Correct Inventorship;

5. Judgment is hereby entered in favor of Defendants and against Plaintiff as to the

claim for Fraud set forth in the Second Amended Complaint, for the reasons set forth in the

Memorandum and Order dated April 25, 2016 [ECF No. 417], and Plaintiff takes nothing by way

of its claim for Fraud;

6. Judgment is hereby entered in favor of Defendants and against Plaintiff as to the

claim for Unfair and Deceptive Trade Practices set forth in the Second Amended Complaint, for

the reasons set forth in the Orders dated May 27, 2016 and June 6, 2016 [ECF Nos. 495 and

507], and Plaintiff takes nothing by way of its claim for Unfair and Deceptive Trade Practices;

7. Judgment is hereby entered in favor of Plaintiff against Defendants as to the

request for enhanced damages under Massachusetts statute G.L. c. 93, § 42 set forth in the

Second Amended Complaint, and Plaintiff is awarded enhanced damages against Defendants in

the amount of twenty one million dollars ($21,000,000);

8. Judgment is hereby entered in favor of Plaintiff in part as to the request for

injunctive relief set forth in Plaintiff’s Second Amended Complaint. Defendants are enjoined to

the full extent articulated in the Court’s Order [ECF No. 583] on Plaintiff’s Motion for an

Injunction dated October 31, 2016;

9. Judgment is hereby entered in favor of Plaintiff and against Defendants as to all of

Defendants’ affirmative defenses set forth in Defendants’ Answer to the Second Amended

Complaint;


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10. Defendants take nothing;

11. Plaintiff is hereby determined to be the prevailing party under Fed. R. Civ. P.

54(d);

12. The Clerk of the Court is directed to tax costs in favor of Plaintiff, who shall have

14 days to submit a bill of costs under Fed. R. Civ. P. 54;

13. Plaintiff may within 14 days move to demonstrate entitlement to attorneys’ fees

under Fed. R. Civ. P. 54. Defendants shall submit their opposition within 10 days after Plaintiff’s

motion is filed. Plaintiff may within 21 days of any order resolving the initial motion in its favor

submit additional briefing and evidence to establish the quantum and reasonableness of such

attorneys’ fees; and

14. It appears that Plaintiff is entitled to prejudgment interest on its $70,000,000

royalty award at the annual rate of 12% from the day this action was commenced (June 6, 2014)

through entry of judgment. Mass. Gen. Law ch. 231, §§ 6B, 6H; see also Mendoza v. Union St.

Bus Co., 876 F. Supp. 8, 12 (D. Mass. 1995) (“prejudgment interest under § 6B is to be added

ministerially after the verdict, and applies to the period of time between the commencement of

suit and the entry of judgment (not delivery of the verdict)”). This would entitle Plaintiff to

$20,905,133.50 in prejudgment interest through December 1, 2016 (0.12 * $70,000,000 * (909

days since June 6, 2014) / (365.25 days per year) = $20,905,133.50). Defendants have asked for

the opportunity to brief the issue of prejudgment interest. Defendants may submit their brief

within 14 days. Plaintiff shall file its opposition within 10 days after Defendants’ brief is filed.


133


5

15. The Court will make an award of postjudgment interest once it issues a decision

on the amount, if any, of prejudgment interest.

SO ORDERED. November 21, 2016 /s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT JUDGE


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United States Court of Appeals for the Federal Circuit

Key Rule Changes

Key changes to the Federal Circuit local rules are included below as a courtesy to assist you in perfecting your appeal. For complete details, please review the current rules and potential future changes by visiting the Court’s online Rules and Notices pages at: www.cafc.uscourts.gov. December 1, 2016 Changes Cases opened on or after December 1, 2016 must comply with the updated rules. The revisions to the Federal Circuit Rules (“Rules”) and Federal Rules of Appellate Procedure (“FRAP”) will change page limitations to word limitations for various documents submitted to the court, if those documents were prepared using a computer word processing program (abbreviated below as: “computer”): • FRAP 27(d)(2): A motion or a response to a motion may not exceed 5,200 words.

o A reply may not exceed 2,600 words. • FRAP 28(j): A citation of supplemental authority may not exceed 350 words. • Rule 29(b): The United States or its officer or agency or a state may file an amicus curiae

brief during consideration of whether to grant rehearing without the consent of the parties or leave of court.

• Rule 39(b): An objection to the bill of costs must not exceed 1,300 words. • FRAP 35(b)(2) & 40(b): A Petition for Rehearing may not exceed 3,900 words. • Rule 40(e): A response to a petition for rehearing must not exceed 3,900 words. • Rule 40(g): An amicus brief on rehearing must not exceed 2,600 words.

April 1, 2016 Changes Cases opened on or after April 1, 2016 must comply with the below rules. Appeals, New Rule 12 - Practice Notes: Clarifies that any objection to an official caption should be made promptly after docketing of the appeal. Briefs

• Rule 28(a)(11): A document that is included in both the addendum and appendix must have the same page numbering. For example, if in the appendix a judgment in question is numbered Appx7-10, it must also be numbered Appx7-10 in the addendum.

Citations • Rule 28(a)(11) and 28(f): Requires appendices, supplemental appendices and addendum

material to be numbered using the abbreviation “Appx” or “SAppx” followed by the page number, and to be referenced in the briefs accordingly. Review the Appendix Reference Formatting Best Practices Guide, on the CM/ECF Reference Materials page of our public web


http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/Amendments/federalcircuitrule28a11andf.pdf

2 0 1 6 R u l e C h a n g e s S u m m a r y P a g e | 2

site www.cafc.uscourts.gov: • Rule 30(b)(4)(E): Requires the use of Bates numbering for all pages of an appendix or

supplemental appendix. Refer to the Adding Bates Number Guide available on the CM/ECF web page, Reference Materials.

Confidential Material Rule 27(m) and Rule 28(d): No material in a brief, motion, response, or reply shall be marked confidential – The exceptions are as follows: Each brief, motion, response, or reply may mark confidential up to fifteen (15) words if the information (1) was treated in the matter under review as confidential pursuant to a judicial or administrative protective order and (2) such marking is authorized by statute, administrative regulation, or court rule (such as Federal Rule of Civil Procedure 26(c)(1)). A 50-word limit applies in cases arising under 19 U.S.C. § 1516a or 28 U.S.C. § 1491(b).

• A motion, response or reply including confidential material must be accompanied by a certificate that the motion, response or reply complies with the word limitation. The form can be embedded within the brief or filed separately.

• Federal Circuit Form 31 is a suggested form of the certificate of compliance with this rule. It is the responsibility of the filing party to ensure that its certificate of compliance is accurate.

When you file a confidential document in CM/ECF, you will be asked to confirm that your document is compliant with all confidentiality requirements and/or that you have simultaneously filed a motion to waive the confidentiality requirements, if applicable (see Figure 1 below).

• To confirm, simply select the check box as indicated in Figure 1 and then select OK.

Figure 1. Confidential Brief Tendered Event

Entry of Appearance (EOA) Rule 47.3: If an attorney’s entry of appearance is first submitted after a case is assigned to a merits panel, the appearance will be treated as a motion to appear. Counsel must immediately file an updated EOA if representation changes. This included a change in contact information. Electronic filers must also report a change in contact information to the PACER Service Center. Oral Argument Rule 34 – Practice Notes: Shortens the time to 7 days from notification by the Clerk’s Office (via Notice of Docket Activity) that the case is fully briefed in which counsel must advise the Clerk’s Office of schedule conflicts; Clarifies argument time per side (not per attorney).

U . S . C O U R T O F A P P E A L S F O R T H E F E D E R A L C I R C U I T
