Page 17 - 2014_0430_TOPVERDICTS

2013

TOP VERDICTS NY

FACTS & ALLEGATIONS On March 27, 2011, plaintiff Tomita Technologies International TRIAL
Inc., a Tokyo-based firm that markets technologies that have been invented by its LENGTH
12 days
principal, Seijiro Tomita, noted the launch of the Nintendo 3DS, which is a portable

video-game-generating device that renders three-dimensional images that can be viewed TRIAL
without the player’s use of special eyewear. The device also has a camera that can create DELIBERATION
2.5 day
three-dimensional photographs and videos. The device is manufactured and distributed
by Tokyo-based Nintendo Co. Ltd. and a subsidiary, Redmond, Wash.-based Nintendo JURY
of America Inc.
COMPOSITION
3 Male / 3 Female
Tomita Technologies International is the holder of U.S. patent No. 7,417,664, which is
entitled, “Stereoscopic Image Picking Up and Display System Based Upon Optical Axes INJURY

Cross-Point Information.” The technology involves the creation of two separate two- TYPE(S)
brain damage, kernicterus, cerebral palsy, jaundice
dimensional images that form a single three-dimensional image. The patent was issued
on Aug. 26, 2008. Seijiro Tomita claimed that the patented technology is utilized by the PLAINTIFF
Nintendo 3DS’ camera, and he claimed that the use was not authorized.
ATTORNEY(S)
Thomas A. Moore; Kramer, Dillof, Livingston & Moore; New York, NY
Tomita Technologies International and its New York-based subsidiary, Tomita
Technologies USA, LLC, sued Nintendo Co. and Nintendo of America. The plaintiffs PLAINTIFF
alleged that Nintendo Co. and Nintendo of America infringed patent No. 7,417,664.
EXPERT(S)
Lawrence Shields M.D.; Neurology; Long Beach, NY
Plaintiffs’ counsel claimed that the defendants knowingly copied Seijiro Tomita’s

technology. They contended that the technology was discussed in 2003, when Tomita DEFENDANT
met representatives of Nintendo Co.
EXPERT(S)
Mark Weinblatt Pediatric Hematology; Mineola, NY
Defense counsel contended that the Nintendo 3DS does not utilize all components of Walter Molofsky Pediatric Neurology; New York,
Tomita’s method of generating three-dimensional images. They claimed that Tomita’s Warren Rosenfeld Neonatology; Mineola, NY
technology requires the camera’s creation of a distanced-based “cross-point” that
calibrates the two images that form the three-dimensional image, but that Nintendo Co.’s FACTS & ALLEGATIONS On July 5, 2007, plaintiff Jaelin Sence, a 1-day-old boy, was
technology does not utilize a cross-point.
examined by members of the staff of Brooklyn’s New York Methodist Hospital, where he

Defense counsel also contested the validity of patent No. 7,417,664. They contended was born. Abnormalities were not detected. Jaelin was discharged during the ensuing day.
that the patent’s technology was anticipated by prior art.
The discharge was approved by pediatrician Dr. Ioanis Atoynatan.
After three additional days had passed, Jaelin was transported to another hospital. Doctors
INJURIES/DAMAGES The plaintiffs claimed that their patented technology is utilized observed a yellow discoloration of Jaelin’s skin and eyes. They determined that he was suffering
by the Nintendo 3DS. They sought recovery of reasonable royalties. Plaintiffs’ counsel hyperbilirubinemia, which is a severe form of jaundice. Jaelin underwent immediate treatment,
contended that the infringement was willful, and they noted that 35 U.S.C. § 284 allows but his jaundice had already caused severe damage of his brain. Jaelin’s mother contended that
trebling of damages that stem from willful infringement.
Jaelin’s jaundice should have been diagnosed by New York Methodist Hospital’s staff. She

claimed that prompt treatment would have prevented damage of Jaelin’s brain.
RESULT Judge Jed Rakoff ruled that the evidence did not establish willful infringement of Jaelin’s father and mother, Jean Sence and Myrtho Sence, acting individually and as
patent No. 7,417,664. The jury found that the Nintendo 3DS’ camera utilized technology Jaelin’s parents and natural guardians, sued New York Methodist Hospital, Atoynatan and
that infringed the patent. It determined that the plaintiffs’ damages totaled $30.2 million.
Atoynatan’s employer, AFAM Multi-Specialty Medical Group LLC. The plaintiffs alleged
that Atoynatan and the hospital’s staff failed to properly treat Jaelin, that the failures
POST TRIAL Judge Rakoff opined there was sufficient evidence to support the jury’s constituted malpractice, and that AFAM Multi-Specialty Medical Group was vicariously
verdict of infringement and that there was sufficient evidence that the patent is valid. liable for Atoynatan’s actions.

However, Rakoff opined that the damages were excessive. He noted that the Nintendo Jaelin’s mother claimed that Jaelin’s jaundice emerged while Jaelin was being treated at
3DS’ camera is an accessorial feature that is utilized by few of the Nintendo 3DS’ many New York Methodist Hospital. She claimed that he developed a yellow discoloration of
games. He also noted that the Nintendo 3DS is not a profitable product. As such, he his eyes, that she informed a nurse and that the nurse opined that Jaelin was not exhibiting
concluded that the jury’s damages could not be considered reasonable royalties. Rakoff an abnormality. Plaintiffs’ counsel contended that Jaelin’s mother’s observation should
gave the plaintiffs the option of accepting an award of $15.1 million for past damages or have been reported to a doctor.
a new trial on damages. Plaintiff accepted the award of $15.1 million.
The plaintiffs’ expert neurologist opined that Jaelin’s jaundice was caused by a
Rakoff also granted plaintiffs’ request for an award of ongoing royalties for defendants’ deficiency of an enzyme, the immaturity of Jaelin’s liver, and incompatibility of the

continued infringement. He ruled that Nintendo must pay a royalty of 1.8% of futures antibodies of the blood of Jaelin and his mother. He contended that those conditions
sales, which represents an increase over the effective royalty rate represented by the $15.1 caused a toxic buildup of bilirubin, but he also opined that prompt detection and
million award for past infringement.
treatment would have prevented permanent damage of Jaelin’s brain. The expert
concluded that Atoynatan and New York Methodist Hospital’s staff departed from
EDITOR’S COMMENT This report is based on court documents and information that accepted standards of medical care.
was provided by plaintiffs’ counsel. Defense counsel did not respond to the reporter’s The defense’s expert hematologist contended that Jaelin and his mother did not have
phone calls.
incompatible antibodies of blood. He opined that an infection caused Jaelin’s buildup of
bilirubin, that the infection developed after Jaelin had been discharged from New York

Methodist Hospital, and that the infection was not related to any treatment that may or may
NUMBER EIGHT
not have been rendered by the hospital’s staff. Defense counsel contended that the hospital’s
staff measured Jaelin’s content of bilirubin, and they claimed that the result was within a normal
range.
MEDICAL MALPRACTICE
Defense counsel also claimed that Atoynatan and the hospital’s staff did not detect a
discoloration of Jaelin’s eyes. They further claimed that Jaelin’s mother did not report
Brain Injuries — Cerebral Palsy — Failure to Test — Failure to Treat — Failure to Detect — Failure such a condition.

to Communicate
INJURIES/DAMAGES Jaelin sustained kernicterus, which is a toxic condition that is
Nurse ignored report of infant’s jaundice, caused by a buildup of bilirubin. The condition caused cerebral palsy. Jaelin cannot
control his limbs; he cannot ambulate; and he requires the constant presence of an aide.
Jaelin’s parents contended that Jaelin’s disabilities will prevent his performance of any
parents claimed
type of work, though the plaintiffs’ expert neurologist opined that the condition will not
significantly shorten Jaelin’s life.

Jaelin’s parents sought recovery of Jaelin’s future medical expenses, the future cost of
AMOUNT $24,813,260
Jaelin’s personal aides, Jaelin’s future lost earnings, and damages for Jaelin’s past and
future pain and suffering. They also presented derivative claims, but those claims were
TYPE Verdict-Plaintiff ultimately discontinued.
CASE Sence v. Atoynatan The defense’s expert neurologist opined that Jaelin’s palsy will greatly shorten Jaelin’s
VENUE Kings County Supreme Court life. The expert estimated that Jaelin will live until the age of 25.
JUDGE Ellen M. Spodek

DATE November 15, 2013
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