Key Points

  • The Federal Circuit affirmed summary judgment for Galderma because Truinject forfeited its diminution-in-value damages theory by not presenting it to the district court.
  • Truinject's sole damages theory below was that Galderma's breaches caused it to lose a potential $100 million Allergan deal, but the alleged breaches began after Truinject had already canceled the relevant Allergan meeting.
  • Truinject admitted in interrogatories that apart from the Allergan Theory, it had presented no evidence of any other form of damages.
  • The court also held that Truinject forfeited its appellate argument on the intentional-interference element of its tortious-interference claim.
  • The nonprecedential ruling ends an eight-year dispute over Truinject's Kate injection-training technology.

The Federal Circuit on Thursday affirmed judgment for Galderma S.A. in a long-running trade-secret and breach-of-contract dispute with Truinject Corp., holding that Truinject forfeited the damages theory it raised on appeal by failing to present it to the district court.

The nonprecedential decision, written by Judge Taranto and joined by Chief Judge Moore and Judge Prost, concluded that Truinject's attempt to recast the lost $100 million Allergan deal as a proxy for the diminished market value of its technology came too late. Because Truinject had no viable damages claim remaining, its contract and trade-secret claims failed as a matter of law.

The dispute centered on "Kate," an injection-training system Truinject developed for aestheticians practicing dermal filler injections. The system featured a mannequin head with lifelike skin and a fiber-optic-equipped syringe that tracked needle depth and position in real time.

In late 2014, Truinject entered into a 90-day exclusive negotiation agreement with Galderma, a company that markets dermal injectables, along with a confidentiality agreement. To comply with the exclusivity provision, Truinject canceled a November 7, 2014 meeting with Allergan, a Galderma rival. An Allergan representative testified that his objective for the scheduled meeting had been "to offer Truinject a $100 million up-front payment" for an exclusive deal.

The Galderma negotiations collapsed in January 2015 without a deal. Truinject alleged that Galderma breached the agreements on three occasions beginning December 15, 2014, by sharing confidential information with third parties in an effort to create a competing product. Truinject sued in 2018, and the case was transferred to the District of Delaware.

The district court, presided over by Judge Gregory Brian Williams, dismissed Truinject's tortious-interference claims on the pleadings and later granted Galderma summary judgment on damages, breach of contract, and trade-secret misappropriation. The court found that Truinject's sole damages theory—that it lost the Allergan deal because of Galderma's breaches—failed on causation grounds. The breaches began in December 2014, but Truinject had already canceled the Allergan meeting in early November to comply with the exclusivity agreement, meaning the alleged breaches could not have caused the missed meeting.

On appeal, Truinject shifted course. Rather than arguing that Galderma's breaches caused it to miss the Allergan meeting, Truinject contended that the proposed Allergan deal served as "a reasonable yardstick" for the diminution in Kate's market value caused by Galderma's misconduct.

The Federal Circuit rejected this argument as forfeited. Judge Taranto wrote that Truinject's opposition to summary judgment had not adequately raised this theory. "A few passing lines buried in the opposition to summary judgment is not enough to have put the appeal theory of damages squarely before the district court," he wrote.

The court emphasized Truinject's own admissions. The day after filing its opposition to summary judgment, Truinject stated in interrogatory responses that "apart from the Allergan Theory, Truinject has presented no evidence or calculation of any other form of damages relating to any of its claims." The company had defined the Allergan Theory as based on payments it "would have expected from a business relationship with Allergan" that "would have been consummated in 2015" but for the alleged breaches—not as a proxy for diminished market value.

The court similarly found that Truinject had forfeited its appellate argument on the intentional-interference element of the tortious-interference claim. Truinject argued on appeal that Galderma interfered with its expected Allergan relationship by pressuring it to enter the exclusive negotiation agreement with no intention of honoring its provisions. But the court held this theory was not meaningfully presented below.

Applying Third Circuit law, Judge Taranto noted that "[t]o preserve an argument, a party must unequivocally put its position before the trial court at a point and in a manner that permits the court to consider its merits." Truinject's opposition to dismissal focused on Galderma's alleged disparagement of Truinject to other industry players after the agreements were signed, not on Galderma's conduct in securing the agreements themselves.

The court also noted that Truinject had declined the district court's invitation to amend its tortious-interference claim after the initial dismissal without prejudice, reinforcing the conclusion of forfeiture.

With no viable damages theory, Truinject's breach-of-contract and trade-secret claims could not survive. The court noted that Truinject sought no relief besides damages on appeal and had not challenged the district court's rejection of its nominal-damages claim.

The judgment in Galderma's favor is now final. The Federal Circuit's ruling is nonprecedential.