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Bausch & Lomb Incorporated v. Sarfarazi

United States District Court, Second Circuit

July 31, 2013



MICHAEL A. TELESCA, District Judge.


Plaintiff, Bausch & Lomb Incorporated ("Plaintiff" or "B&L"), brings this action seeking, inter alia, a declaratory judgment that it did not breach a license agreement with the Defendant, Faezeh Mona Sarfarazi, M.D. ("Defendant" or "Sarfarazi"), for the license of intellectual property owned by Sarfarazi. (Docket No. 1.) Sarfarazi answered the complaint and asserted four counterclaims for breach of contract based on B&L's alleged failure to use commercially reasonable efforts to develop an intraocular lens with the use of Sarfarazi's intellectual property, which was the purpose of the license agreement; B&L's breach of its obligations after the termination of the agreement; unfair competition and/or misappropriation of ideas; and for the correction of a patent application filed by B&L to list Sarfarazi as the inventor. (Docket No. 12.) In her Response to Plaintiff's First Set of Interrogatories, Sarfarazi alleged that "[she] has suffered consequential damages based upon her lens' diminution in value as a result of B&L's conduct. With the flawed clinical trials, her intraocular lens has suffered damage to its reputation in the marketplace." (Docket No. 78-2 at 15.)

B&L now moves for partial summary judgment to dismiss Sarfarazi's claims for reputational harm as speculative and to dismiss Sarfarazi's claim for breach of contract based on B&L's alleged failure to use commercially reasonable efforts to develop the product. Def. Mem. of Law at 1-2, Docket No. 78-19. The motion is unopposed. For the reasons discussed herein, the Court grants in part and denies in part Plaintiff's motion for partial summary judgment. Defendant's damages claim for reputational harm is dismissed, but the motion is denied with respect to Defendant's claim for breach of contract.


The following facts are taken from Plaintiff's submission pursuant to Local Rule 56 (a)(1) and the accompanying exhibits. Defendant has not responded to the instant motion or Plaintiff's Local Rule 56 Statement of Facts. Therefore, the facts contained in the Defendant's Local Rule 56 Statement of Facts are deemed admitted. See Local Rule of Civ. P. 56 (a)(2). However, the Court has reviewed the entire record to determine whether there are any disputed issues of fact.

On July 18, 2003, B&L and Sarfarazi entered into a license agreement ("the Agreement") for the development of an intraocular lens, invented by Sarfarazi, for the treatment of the eye condition presbyopia. Pl. Statement of Facts at ¶1; Foos Aff. at ¶6. Pursuant to the Agreement, Sarfarazi received an initial payment of $2.5 million upon execution of the Agreement and additional payments as B&L hit certain milestones in the development of the lens. In total, Sarfarazi received $9.5 million under the Agreement. Pl. Statement of Facts at ¶¶ 10-11, 24.

The Agreement required B&L to "use reasonable commercial efforts to achieve the development milestones" set forth in the Agreement and to develop the licensed product for sale. License Agreement §7(a), Docket No. 78-7 at 11. The Agreement also required B&L to incur all costs related to the development of the lens. Id . The Agreement states that "B&L may, from time to time, consult or confer with [Sarfarazi] with regard to development of Licensed Product...but B&L shall have complete control and authority over the development of Licensed Products." Id . B&L was required to provide monthly reports until the "first commercial sale" and to meet with Sarfarazi quarterly during the first three years of development and later every six months. License Agreement §7(d), Docket No. 78-7 at 11-12. B&L also agreed to provide Sarfarazi with certain reports concerning the development of the product, including clinical trials. Id.

B&L began its development of the lens in 2003, at a time when no other similar lens existed on the market. Foos Aff. ¶11. It was unclear whether the lens could be developed safely and effectively or whether B&L could gain the necessary regulatory approvals. Id . Nevertheless, B&L, inter alia, developed a unique manufacturing process for the lens, conducted clinical trials, developed surgical techniques for the lens and implanted the lens in 76 patients. Id. at ¶12. However, after three years of development, B&L concluded that the lens provided limited improvement in patients with presbyopia and that it carried with it certain safety concerns, including infection. Id. at ¶ 25-29. B&L sent Sarfarazi periodic updates relating to the development of the lens and the clinical trials, and Sarfarazi visited the clinical trial sites in Mexico and India. Foos Aff. at ¶¶ 15-18; Sarfarazi Dep. at pg. 222. However, on several occasions, B&L failed to timely provide Sarfarazi with monthly reports. Foos Aff. Exhibit 4.

Then, on February 7, 2007, B&L sent a termination letter to Sarfarazi, terminating the Agreement pursuant to Section 13(b), which permitted B&L to terminate the Agreement upon 60 days notice if it made a "commercially reasonable determination that there ha[d] been a material change in...the safety and efficacy goals" for the lens. License Agreement §13(b), Docket No. 78-7 at 17. The Agreement then provided Sarfarazi 60 days to discuss the termination with B&L, but B&L retained the right to terminate if its decision regarding the efficacy and/or safety of the product had not changed during the 60 days. The Agreement provides that if Sarfarazi disputed B&L's decision to terminate the Agreement, her sole remedy was to commence an arbitration proceeding within 90 days after the 60 day notice period. License Agreement §13(b), Docket No. 78-7 at 17. The 90 day period was extended through February 28, 2008, however, Sarfarazi did not commence an arbitration proceeding. Pl. Statement of Facts at ¶22.

As stated, Sarfarazi was updated on a periodic basis of the status of B&L's development efforts and she visited two of the clinical trial sites. Sarfarazi did not inform B&L that she believed they had breached the Agreement by failing to use commercially reasonable efforts to develop the lens prior to B&L's termination of the Agreement. The Agreement provides that Sarfarazi could terminate the Agreement only if she notified B&L of a material breach and afforded it 60 days to cure the breach. License Agreement §13(a), Docket No. 78-7 at 16. However, the record indicates that Sarfarazi did not always receive the information to which she was entitled on a timely basis and she alleges that she did not receive reports regarding several of the clinical trials until after termination. Answer and Counterclaims at ¶¶ 89-98, Docket No 12.

Following termination, Sarfarazi attempted to market the lens to four other pharmaceutical companies, but ultimately, she decided not to proceed with any of the companies. Sarfarazi Dep. at pg. 596-606. She states that she is "not ready" to proceed with any company because of this pending litigation. Id. at pg. 606.


Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(a). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. See Scott v. Harris , 550 U.S. 372, 379 (2007) (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-587.). An unopposed motion for summary judgment may be granted if the Court determines that the moving party met its burden of demonstrating that ...

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