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Re: HDGabor post# 281754

Sunday, 06/21/2020 2:54:15 AM

Sunday, June 21, 2020 2:54:15 AM

Post# of 422612
HD, most respectfully, your dismissive non-answer to Raf's direct question is stunning to say the least. Raf asked you a direct question seeking your view concerning Covington's failure to hire an expert to write a statistical analysis.

You replied that such concerns "are all hindsight"; you are not aware of any post/poster who raised the issue BEFORE March 30/the Order; and the Board is filled with "emotion and armchair quarterbacking." Quite honestly, your dismissive non-answer is arrogant, smug, condescending, and wholly devoid of merit.

You have already acknowledged that you are not a litigator. Because you are not a litigator, you fail to realize that every plaintiff's litigator in every negligence/malpractice case, begins with hindsight. First we look at whether there are damages. Here, there are billions of dollars in damages.

Next we look back with hindsight as to what caused those damages. With the benefit of hindsight, we see that Covington did not hire an expert to write a statistical analysis.

Was that negligence/legal malpractice? Legal malpractice, like any negligence case has four elements: (1) Duty; (2) Breach of Duty; (3) Causation; and (4) Damages.

Sipes is indisputably a nationally recognized specialist in patent litigation. Because he and his trial team, as well as Kennedy, are all specialists, they are subject to a heightened duty of care as a matter of law.

This was "bet the company" litigation. Covington was probably paid seven figures in legal fees to litigate this case. As specialists retained for this endeavor, with this much at stake, they are held to the highest standard of care in terms of their duty to the client.

This distinguishes Covington from this Board. The posters on this Board are not patent litigation specialists, were not retained by Amarin, and have not been paid millions of dollars in legal fees by Amarin. Covington, however, satisfies all of that criteria. Thus what the posters on this Board foresaw and/or failed to foresee, is completely irrelevant to what Covington was duty bound to foresee.

Given the enhanced legal duty as specialists, Covington had a duty to make sure that every angle was covered in the prosecution of this case. This includes the duty to hire a statistical analysis expert, as it was foreseeable from their perspective that the issue could arise and have an effect on the outcome. If in defense, they claim that it was not foreseeable, then they are being disingenuous, and should have never been hired in the first place.

By failing to retain such an expert, Covington arguably breached their duty of care. That breach more likely than not, was arguably a substantial factor in the negative trial outcome, as such an expert analysis, if presented, could have arguably nullified the ability of Judge Du to rule the way she did. The resultant damages are in the billions of dollars.

Whether you and the other naysayers refuse to accept the reality that Covington may have very well committed legal malpractice, the fact remains that the elements can be satisfied, and subject to further investigation, there may very well be a meritorious case to be pursued derivatively on behalf of Amarin.

As to "emotion and armchair quarterbacking", synonymous with your derogatory connotation, are the terms "passion and objective analysis". Objectively and reasonably, much to even my shock and dismay, it appears that based upon the facts and applicable, law, there is a potentially valid, meritorious legal malpractice case against both Covington and Kennedy, which is worthy of further investigation and review.

While reasonable minds can differ on the ultimate outcome, from this point forward, anyone who arrogantly, smugly, and condescendingly dismisses the concept as trivial, does so at the expense of their credibility.
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