# Insulet Corporation v. EOFlow, Co. Ltd.

> District Court, D. Massachusetts · April 24, 2025

URL: https://www.frixlaw.com/law-library/cases/10851251

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** April 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10851251

## How later opinions describe it (automated extraction)

- stating that “[g]enerally, an election between inconsistent remedies is made after a verdict is entered but prior to the entry of judgment”
- stating that a Rule 50(b) movant “cannot use such a motion as a vehicle to introduce a legal theory not distinctly articulated in its [Rule 50(a) motion]”
- stating that “where a party seeks a new trial based on allegations of judicial misconduct, [a]n objection to the alleged misconduct is ordinarily required, either at the time of the misconduct or at the next available opportunity outside the jury’s presence”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

_______________________________________
)
INSULET CORPORATION, )
)
Plaintiff, )
) Civil Action No.
v. ) 23-11780-FDS
)
EOFLOW CO., LTD.; EOFLOW, INC.; )
NEPHRIA BIO, INC.; and JESSE KIM, )
)
Defendants. )
_______________________________________)

MEMORANDUM AND ORDER ON DEFENDANTS’ RENEWED MOTION
FOR JUDGMENT AS A MATTER OF LAW AND MOTION FOR A NEW TRIAL

SAYLOR, C.J.
This dispute concerns the misappropriation of trade secrets for the design and
manufacture of an insulin patch pump, the Omnipod, produced by plaintiff Insulet Corporation.
Plaintiff sued seven defendants: EOFlow Co., Ltd., and EOFlow, Inc. (collectively, “EOFlow”);
Nephria Bio, Inc.; EOFlow’s Chief Executive Officer, Jesse Kim; and three former Insulet
employees, Luis Malave, Steven DiIanni, and Ian Welsford.
After a month-long trial, a jury returned a verdict on December 3, 2024, finding six
defendants—all except Malave—liable for misappropriation of trade secrets in violation of the
Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq. (“DTSA”). The jury awarded plaintiff $452
million in total damages.
On February 25, 2025, pursuant to a separately negotiated Consent Permanent Injunction
and Judgment between plaintiff and Malave, DiIanni, and Welsford, the Court entered a final
judgment under Fed. R. Civ. P. 54(b) and issued a permanent injunction in accordance with the
terms of the parties’ agreement. (ECF Nos. 924-25).
The remaining defendants—EOFlow, Nephria Bio, and Kim—have renewed their motion
for judgment as a matter of law and, in the alternative, moved for a new trial. For the following
reasons, the motions will be denied.1

I. Legal Standard
A. Rule 50(b)
A renewed motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) is a
challenge to the legal sufficiency of evidence supporting the jury’s verdict. See Fed. R. Civ. P.
50(a)(1); see Cook v. State of R.I., Dep’t of Mental Health, Retardation & Hosps., 10 F.3d 17, 21
(1st Cir. 1993). The motion is “subject to a demanding standard.” Astrolabe, Inc. v. Esoteric
Techs. PTY, Ltd., 2002 WL 511520, at *2 (D. Mass. Mar. 29, 2002). The jury’s verdict “must be
upheld unless the facts and inferences, viewed in the light most favorable to the verdict, point so
strongly and overwhelmingly in favor of [the moving party] that a reasonable jury could not have
returned the verdict.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009).
Put another way, judgment as a matter of law “is appropriate only where ‘there is a total lack of

evidence in support of the plaintiff’s case.’” Astrolabe, 2002 WL 511520, at *2 (quoting
Censullo v. Brenka Video, Inc., 989 F.2d 40, 42 (1st Cir. 1993)).
The court “may not consider the credibility of witnesses, resolve conflicts in testimony,
or evaluate the weight of the evidence.” Barkan v. Dunkin’ Donuts, Inc., 627 F.3d 34, 39 (1st
Cir. 2010); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The
jury’s verdict must stand unless the evidence “points unerringly to an opposite conclusion.”

1 For the sake of convenience, the term “defendants” will hereafter refer only to EOFlow, Nephria Bio, and
Kim unless the context indicates otherwise.
Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 75 (1st Cir. 2001). This standard is
“weighted toward preservation of the jury verdict.” Rinsky v. Cushman & Wakefield, Inc., 918
F.3d 8, 26 (1st Cir. 2019).
Importantly, a party renewing a motion for judgment as a matter of law under Rule 50(b)
is “bounded by the movant’s earlier Rule 50(a) motion,” and may not use a Rule 50(b) “motion

as a vehicle to introduce a legal theory not distinctly articulated in its [Rule 50(a) motion].”
Cornwell Ent., Inc. v. Anchin, Block & Anchin, LLP, 830 F.3d 18, 25 (1st Cir. 2016) (alteration
in original).
B. Rule 59(a)
A court may grant a motion for a new trial under Fed. R. Civ. P. 59(a) “only ‘if the
verdict is against the law, against the weight of the credible evidence, or tantamount to a
miscarriage of justice.’” Sánchez v. Foley, 972 F.3d 1, 16 (1st Cir. 2020) (quoting Thomas &
Betts Corp. v. New Albertson’s, Inc., 915 F.3d 36, 60 (1st Cir. 2019)). Although a “district
court’s power to grant a motion for a new trial is much broader than its power to grant a
[judgment as a matter of law,]” Jennings v. Jones, 587 F.3d 430, 436 (1st Cir. 2009), the court’s

discretion is nevertheless “limited,” see Burnett v. Ocean Properties, Ltd., 422 F. Supp. 3d 369,
389 (D. Me. 2019), aff’d, 987 F.3d 57 (1st Cir. 2021). Thus, the court “may not grant a motion
for a new trial merely because [it] might have reached a conclusion contrary to that of the
jurors.” Id. (quoting Conway v. Electro Switch Corp., 825 F.2d 593, 598-99 (1st Cir. 1987)).
Moreover, even if the court did err during the course of the trial, “[l]egal error does not warrant a
new trial if it is harmless (or not prejudicial) to the moving party.” BioPoint, Inc. v. Dickhaut,
110 F.4th 337, 353 (1st Cir. 2024).
II. Analysis
A. Renewed Motion for Judgment as a Matter of Law
Defendants contend that judgment is warranted in their favor on multiple grounds,
including (1) plaintiff’s claims are time-barred; (2) plaintiff did not prove that any of its trade
secrets were misappropriated; (3) the evidence was insufficient to prove that the
misappropriation was willful and malicious; and (4) the jury’s damages award was unreasonable.

1. Statute of Limitations
Defendants repeat their position that plaintiff’s claims were time-barred under the statute-
of-limitations provision of the DTSA, which states in relevant part that private civil actions “may
not be commenced later than 3 years after the date on which the misappropriation with respect to
which the action would relate is discovered or by the exercise of reasonable diligence should
have been discovered.” 18 U.S.C. § 1836(d).
Defendants raise two arguments. First, they assert that the DTSA should be understood
as applying an inquiry-notice accrual standard, under which the limitations period would begin to
run when a plaintiff has reason to suspect that its trade secrets had been misappropriated.
Because certain evidence presented at trial suggested that plaintiff may have had such a

suspicion before the limitations cut-off date, defendants contend that plaintiff’s claims are barred
as a matter of law.
However, for the reasons stated in the Court’s October 31, 2024 memorandum and order
denying defendants’ motion for summary judgment on statute-of-limitations grounds, the clear
text of the statute is not reconcilable with an inquiry-notice standard. (See ECF No. 753).
Drawing on the principles laid out in Merck & Co. v. Reynolds, 559 U.S. 633 (2010)—where the
Supreme Court considered a statute-of-limitations provision nearly identical to that found in the
DTSA and explicitly rejected inquiry notice as the applicable accrual standard—the Court
determined that the triggering event under the DTSA’s accrual standard is not the mere suspicion
of misappropriation. Instead, a cause of action accrues under the DTSA when “the
misappropriation with respect to which the action would relate” is (1) actually discovered or (2)
“by the exercise of reasonable diligence should have been discovered.” 18 U.S.C. § 1836(d).
And it does not accrue when the plaintiff merely has sufficient information to put it on inquiry

notice. See 559 U.S. at 650-51.
Defendants next contend that even under the Merck accrual standard, the claims are
nonetheless time-barred. In their view, “substantial evidence showed that with reasonable
diligence, Insulet did or should have discovered the alleged misappropriation before [the
limitations cut-off date], and no reasonable jury could have found otherwise.” (Def.’s Mot. at 2).
However, the record contains substantial evidence supporting the jury’s finding that plaintiff
neither discovered nor should have discovered the misappropriation before the limitations cut-off
date. For example, although plaintiff’s employees observed EOPatch 2 prototypes at industry
conferences in 2018 and 2019, trial testimony indicated that an observer could not have

discovered the misappropriation of the trade secrets merely by viewing the prototype from afar.
Meanwhile, publicly available information concerning the EOPatch 2’s design prior to the cut-
off date would not have led to discovery of the misappropriation. According to evidence
introduced at trial, much of the public information available at the time portrayed the EOPatch 2
as incorporating technology distinct from that used in the Omnipod. And the evidence also
showed that discovery of the misappropriation would not have been possible without
disassembling and studying the EOPatch 2, which was not commercially available until after the
limitations cut-off date.
It may be true that certain evidence supported defendants’ position, such as plaintiff’s
knowledge that multiple former employees worked at EOFlow. But there was ample evidence to
support the jury’s finding that plaintiff did not discover, nor reasonably should have discovered,
the misappropriation before the limitations cut-off date. Defendants’ motion for judgment as a
matter of law will therefore be denied as to its statute-of-limitations defense.

2. Trade-Secret Misappropriation
Defendants next contend that judgment in their favor is warranted because plaintiff failed
to prove that its trade secrets were misappropriated. Specifically, defendants assert that (1)
plaintiff did not employ reasonable measures to protect its information and (2) plaintiff failed to
prove multiple elements required to state a claim under the DTSA.
a. Reasonable Measures
Under the DTSA, information may only be deemed a trade secret if, among other things,
“the owner thereof has taken reasonable measures to keep such information secret.” 18 U.S.C. §
1839(3)(A). In defendants’ view, “[t]he evidence was wholly lacking on how [plaintiff]
protected any of the specific information asserted as trade secret.” (Def.’s Mot. at 4). They
point to the testimony of their expert witness, Joseph Steinberg, who stated that plaintiff’s

uniform application of its security protocols to all information, trade-secret or otherwise, was
unreasonable. Defendants further note that plaintiff had few policies and trainings specifically
concerning its trade secrets and that it failed to ask departing employees whether they retained
trade-secret information.
The reasonableness of a company’s security measures is evaluated on a case-by-case
basis, taking into consideration the totality of precautions employed by the company. See
Allstate Ins. Co. v. Fougere, 79 F.4th 172, 193 (1st Cir. 2023) (listing multiple security measures
employed by a plaintiff—including “confidentiality provisions,” restricted access to confidential
information, and revoked access to company materials upon an employee’s termination—that
together satisfied the DTSA’s reasonable-measures requirement). Importantly, “the standard is
reasonableness, not perfection.” Id. (citing TouchPoint Sols., Inc. v. Eastman Kodak Co., 345 F.
Supp. 2d 23, 30 (D. Mass. 2004)). Thus, just because a plaintiff “could have done more to
protect [its] information” does not render the measures that it did implement unreasonable as a

matter of law. Id.
Here, plaintiff elicited substantial evidence showing that it took reasonable measures to
protect its information. Specifically, plaintiff’s expert witness, Dr. Gregory Rattray, testified that
plaintiff met industry-standard security practices through its promulgation of internal-security
policies, its requirement that employees execute non-disclosure agreements, and its restriction of
access to trade-secret materials. Other witnesses further elaborated on the specific steps that
plaintiff implemented to keep its information confidential, including a number of physical and
digital security measures.
It may be true, as defendants claim, that plaintiff could have taken a more rigorous

approach to protecting its information—for example, by limiting employees’ use of personal
devices for work-related matters. But the DTSA does not require perfection, nor does it require a
company to take any particular step to protect its information. The law only requires that an
owner take “reasonable measures.” 18 U.S.C. § 1839(3)(A). And based on the evidentiary
record, plaintiff’s measures were not unreasonable as a matter of law. The conflict in opinions
offered by the expert witnesses as to the sufficiency of plaintiff’s security measures was for the
jury to resolve. It is the jury’s proper role to “consider the credibility of witnesses, resolve
conflicts in testimony, [and] evaluate the weight of the evidence.” Barkan, 627 F.3d at 39.
Here, the jury permissibly resolved the conflict in favor of plaintiff. Because the record
contains ample evidence supporting the jury’s finding, the motion for judgment as a matter of
law as to the reasonableness of plaintiff’s security measures will be denied.
b. Trade-Secret Misappropriation
The jury found that defendants had misappropriated four trade secrets: (1) the design

history file for the Omnipod Eros (“DHF”); (2) the computer-aided design files for the Omnipod
(“CAD files”); (3) the occlusion-detection algorithm for the Omnipod (“ODA”); and (4) the
Omnipod soft cannula. Defendants contend that plaintiff failed to prove its misappropriation
claim as to each of those four trade secrets.2
i. The Design History File
Defendants first contend that the evidence did not support the jury’s finding that the DHF
was a protectable and misappropriated trade secret. They start by asserting that plaintiff failed to
define the DHF with “reasonable precision.” (Def.’s Mot. at 6). In defendants’ view, plaintiff
failed to reasonably define the information comprising the DHF trade secret, thereby failing to
meet its burden under the DTSA.
As the Court discussed in its summary-judgment order, a plaintiff asserting a DTSA

claim must “adequate[ly]” describe the asserted trade secrets “with clarity that can be understood
by a lay person.” Neural Magic, Inc. v. Meta Platforms, Inc., 659 F. Supp. 3d 138, 166-67 (D.
Mass. 2023) (quoting Sutra, Inc. v. Iceland Exp., ehf, 2008 WL 2705580, at *4 (D. Mass. July

2 Defendants also raise an objection under the DTSA’s extraterritoriality provision, asserting that plaintiff
failed to demonstrate that defendants “act[ed] in furtherance” of a trade-secret misappropriation committed in the
United States (as opposed to South Korea), as required under the DTSA. 18 U.S.C. § 1837. However, defendants
failed to raise that argument in their Rule 50(a) motion for judgment as a matter of law, and have therefore waived
it. See Cornwell, 830 F.3d at 25 (1st Cir. 2016). Defendants’ motion as to the application of the DTSA’s
extraterritorial provision will therefore be denied.
10, 2008)). Although “courts have required specificity,” Iconics, Inc. v. Massaro, 266 F. Supp.
3d 449, 456 (D. Mass. 2017), the analysis must be undertaken with “a modicum of common
sense” geared towards ensuring the trade secrets are sufficiently defined such that the defendants
can effectively prepare a rebuttal and that the jury can understand the claims asserted. See
Broad-Ocean Techs., LLC v. Lei, 649 F. Supp. 3d 584, 594 (E.D. Mich. 2023).

Testimony offered by several witnesses support the jury’s conclusion that the DHF trade
secret was adequately defined. For example, plaintiff’s Vice President of Global Regulatory
Affairs, Julie Perkins, described at length the contents and purpose of the DHF and the
underlying regulatory scheme dictating its format. Welsford also explained that the DHF
contains the full history of a medical device’s design, corroborating the description provided by
plaintiff’s engineer, Jason O’Connor. Multiple other witnesses offered similar testimony as to
the scope, components, and function of the DHF, supporting the jury’s finding that the DHF was
adequately defined for the purposes of bringing a DTSA claim.
Defendants next contend that “the evidence was insufficient for a reasonable jury to find

that any [d]efendant acquired, used, or disclosed the asserted DHF compilation trade secret[.]”
(Def.’s Mot. at 8). As relevant here, under the DTSA, misappropriation means (1) the
“acquisition of a trade secret of another by a person who knows or has reason to know that the
trade secret was acquired by improper means” or (2) the “disclosure or use of a trade secret of
another without express or implied consent by a person who used improper means to acquire
knowledge of the trade secret.” 18 U.S.C. § 1839(5). And, as the Court instructed, a
compilation trade secret, such as the DHF, may be deemed misappropriated under the DTSA if a
defendant acquires, discloses, or uses at least a substantial portion of the unique qualities or
characteristics of the compilation that qualify it as a trade secret. See Compulife Software Inc. v.
Newman, 959 F.3d 1288, 1314 (11th Cir. 2020).
The record contains substantial evidence supporting the jury’s finding that the DHF was
misappropriated. Testimony from Paul Hamm revealed that he had improperly accessed
component documents of the DHF while working for Nephria Bio. Email correspondence

between Nephria Bio and EOFlow employees further illustrated defendants’ efforts to
misappropriate the DHF. DiIanni also testified that Kim directed an EOFlow associate to take
the CAD files—which were part of the DHF—from him at a meeting in 2018. Taken together,
the record provided more than sufficient evidence to support the jury’s finding that defendants
misappropriated a substantial portion of the DHF.
Defendants further contend that no reasonable jury could find that the DHF trade secret
derives independent economic value from not being generally known or readily ascertainable.
(Def.’s Mot. at 9). Under the DTSA, to qualify as a trade secret, information must “derive[]
independent economic value, actual or potential, from not being generally known to, and not

being readily ascertainable through proper means by, another person who can obtain economic
value from the disclosure or use of the information.” 18 U.S.C. § 1839(3)(B).
Multiple witnesses at trial testified that the DHF is a critical component of developing a
medical product and contains valuable confidential information about the product’s design and
development that could not be independently derived. That testimony was corroborated by
evidence that Medtronic, EOFlow’s prospective acquirer, wanted to acquire information
concerning the DHF for the EOPatch 2, further underscoring the DHF’s economic value. The
jury, therefore, reasonably concluded that the DHF qualified as a trade secret.
The motion for judgment as a matter of law will therefore be denied as to the jury’s
finding that the DHF was a protectable and misappropriated trade secret.
ii. The Computer-Aided Design Files
Defendants next contend that the jury erred in finding that the CAD files were a
protectable and misappropriated trade secret. They first assert that plaintiff failed to sufficiently

identify the scope of the CAD files. (Def.’s Mot. at 10). Specifically, they contest the
characterization of the CAD files as information that could legally constitute a trade secret in the
first place, and they dispute the notion that the exemplary CAD file presented to the jury was the
same as that which was misappropriated.
In its summary-judgment order, the Court addressed the question of whether the CAD
files could, as a matter of law, constitute a trade secret under the DTSA. A CAD file is “a digital
file format of an object generated using CAD software, containing a blueprint, technical drawing,
schematic, or 3D rendering of an object.” Anindita Sengupta, CAD File, Technology Glossary
Definitions—G2 (last visited Mar. 12, 2025), https://www.g2.com/glossary/cad-file-definition.
Because “[i]t is well settled that detailed manufacturing drawings . . . are prima facie trade

secrets,” the Court found that CAD files could qualify as a trade secret under the DTSA. See
Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 410 (6th Cir. 2006) (quoting A.H.
Emery Co. v. Marcan Products, 389 F.2d 11 (2d Cir. 1968)).
Defendants assert that the CAD files are not trade secrets because they are readily
ascertainable. (Def.’s Mot. at 11). They rely primarily on testimony from various witnesses that
the information in the files could be reverse engineered because the Omnipod’s dimensions—
reflected in the CAD file—could readily be measured on the physical device.3
There was ample evidence, however, that the CAD files contained information
concerning not only thousands of component dimensions, but also component orientations and
positionings that are not readily ascertainable by reverse engineering. And, indeed, there was

evidence that defendants’ experts were not actually able to reverse engineer the Omnipod’s
nominal dimensions. Again, it is the proper role for the jury to resolve conflicts in the evidence
presented. The fact that the jury deemed more persuasive plaintiff’s evidence concerning the
possibility of reverse engineering is not ground for entering a judgment in defendants’ favor.
Defendants next contend that a reasonable jury could not find that any defendant
acquired, used, or disclosed the CAD files. (Id.). But the record contains clear evidence that
DiIanni handed over the Omnipod CAD files to EOFlow at a meeting with Kim and other
EOFlow employees in 2018, and that EOFlow employees repeatedly referred to those files to
resolve subsequent engineering issues. That evidence unquestionably supports the jury’s finding

that the CAD files were misappropriated.
Finally, defendants contend that no reasonable jury could conclude that the CAD files
derive independent economic value from not being generally known or readily ascertainable.
(Id.). But multiple witnesses testified otherwise, stating that CAD files contain valuable, non-
public information that is critical for large-scale production of the device, which clearly supports
the jury’s finding. Indeed, if the CAD files were not secret and had no value, EOFlow would not
have had any interest in acquiring or using them.

3 Defendants also argue that the misappropriated CAD files differ from those shown to the jury. However,
the jury resolved that issue in favor of plaintiff, and that determination is sufficiently supported by the record.
Accordingly, the motion for judgment as a matter of law will be denied as to the jury’s
finding that the CAD files were a protectable and misappropriated trade secret.
iii. The Occlusion-Detection Algorithm
Defendants next challenge the jury’s finding that the ODA was a protectable and
misappropriated trade secret. First, they contend that the evidence did not “sufficiently identify”

the ODA as a trade secret. (Id. at 12). Specifically, defendants assert that plaintiff failed to state
what constitutes the trade secret, whether it be the software code used in the ODA or some other
element.
However, testimony by plaintiff’s witness, Lane Desborough, explained the elements of
the claimed ODA trade secret, including a number of sub-component algorithms that compose
the ODA as a whole. Those elements are also memorialized in various product-design
documents that were presented to the jury. Thus, the evidence supports the jury’s determination
that the ODA trade secret was sufficiently identified.
Defendants next contend that plaintiff’s ODA is readily ascertainable, stating that the
concept of occlusion detection is well known. (Id.). Desborough in fact testified that occlusion

detection is a standard feature of all insulin pumps. But the trade secret alleged by plaintiff and
described to the jury specifically concerned plaintiff’s ODA—including its multiple component
steps and features—not occlusion detection in general. And Desborough’s testimony provided
sufficient detail as to how plaintiff’s ODA functions and why each component is necessary,
insights that a jury could reasonably believe to not be readily ascertainable.
Defendants next contend that the evidence was insufficient for a reasonable jury to find
that any defendant acquired, used, or disclosed the ODA trade secret. (Id. at 13). But plaintiff
introduced substantial evidence indicating that DiIanni provided Kim and other EOFlow
employees guidance and information drawn from plaintiff’s confidential ODA materials, and that
EOFlow employees used that information in the process of developing the EOPatch 2.
Defendants point out that the evidence does not show that DiIanni ever handed EOFlow’s
employees the physical forms on which plaintiff’s ODA information was stored and described.
But that is no defense to a misappropriation claim. A trade secret need not be reduced to a
physical document; rather, under the DTSA, a trade secret includes “all forms and types of . . .

scientific . . . or engineering information.” 18 U.S.C. § 1839(3) (emphasis added). Moreover, it
may be true that the EOPatch 2’s ODA was different from the Omnipod’s, but as the Court
instructed the jury, use of any substantial portion of a trade secret is sufficient to constitute
misappropriation, even when the user makes independent modifications or improvements to the
trade secret. See Benchmark Techs., Inc. v. Tu, 2023 WL 8371973, at *4 (D. Mass. May 30,
2023). The jury’s finding that the ODA was misappropriated is reasonable and supported by the
evidence.
Finally, defendants again assert that no reasonable jury could conclude that the ODA
trade secret derives independent economic value from not being generally known or readily

ascertainable. (Def.’s Mot. at 13). But the record included evidence tending to show that the
plaintiff’s ODA plays a unique and valuable role in ensuring that the Omnipod works safely for
patients, providing a sufficient basis for the jury to conclude that the ODA qualified as a trade
secret under the DTSA.
The motion for judgment as a matter of law will therefore be denied as to the jury’s
finding that the ODA was a protectable and misappropriated trade secret.
iv. The Soft Cannula
Defendants next object to the jury’s finding that the design and manufacturing process for
the soft cannula qualified as a protectable trade secret under the DTSA and that it was
misappropriated. They begin by asserting that the evidence presented failed to sufficiently
identify the alleged trade secret. (Id.). However, multiple exhibits introduced at trial—
supplemented by testimony from plaintiff’s witnesses—detailed the design and manufacturing of
the soft cannula that underpinned the asserted trade secret, which is more than sufficient to
support the jury’s finding.
Defendants next contend once again that the soft-cannula trade secret is readily

ascertainable. (Id. at 14). Defendants point to testimony by their witness, Boris Leschinsky, that
suggested certain dimensions of the soft cannula are measurable and therefore not secret.
However, as plaintiff notes, the prototype cannula that Leschinsky prepared for trial to
demonstrate that it was capable of being reverse engineered failed in many respects to replicate
the functionality of the Omnipod’s soft cannula. A jury could reasonably view the disparity in
functionality as evidence that the trade secret was not readily ascertainable. Moreover,
additional testimony by plaintiff’s witnesses contradicted testimony by defendants’ witness as to
the measurability of the soft cannula’s dimensions using only a physical sample. The jury’s
resolution of that conflict in plaintiff’s favor is well-supported by the evidence.

Defendants next assert that no reasonable jury could have found that any defendant
acquired, used, or disclosed the soft-cannula trade secret. (Id.). Plaintiff introduced evidence
that prior to its engagement with DiIanni, EOFlow had very limited experience with designing
soft cannulas. Additional evidence revealed that EOFlow employees leaned heavily on DiIanni
for guidance on how to engineer a soft cannula for the EOPatch 2, and that the information
provided by DiIanni bore unusually specific similarities to the design and dimensions of the
Omnipod’s soft cannula. Thus, a reasonable jury could infer from the evidence that EOFlow and
Kim impermissibly acquired and used plaintiff’s soft-cannula design and manufacturing
information from DiIanni to build the EOPatch 2.
Finally, defendants again assert that no reasonable jury could find that the soft-cannula
trade secret derives independent economic value from not being generally known or readily
ascertainable. (Id.). But plaintiff’s witness O’Connor testified at length about the importance
and value of the soft cannula in the Omnipod’s design and success.
The motion for judgment as a matter of law will therefore be denied as to the jury’s

finding that the soft cannula was a protectable and misappropriated trade secret.
3. Willful and Malicious Misappropriation
Defendants next contend that no reasonable jury could find that EOFlow Co., Ltd., and
Kim engaged in “willful and malicious” misappropriation under the DTSA. (Id. at 15).
Defendants do not contest that the evidence supported a finding that the misappropriation was
willful, but instead focus on the sufficiency of evidence showing that EOFlow Co., Ltd., or Kim
acted with malicious intent.
Under the DTSA, a plaintiff may be awarded exemplary damages of up to two times the
amount of damages awarded for actual loss and unjust enrichment if the misappropriation is
found to be willful and malicious. 18 U.S.C. § 1836(a)(3). As the Court instructed the jury,

conduct is “willful” if done intentionally, with a purpose or willingness to commit the act or
engage in the conduct in question; meanwhile, conduct is “malicious” if done with an intent to
cause injury or harm. A defendant’s “attempts to conceal its misappropriation support a finding
that it was willful and malicious.” KPM Analytics N. Am. Corp. v. Blue Sun Sci., LLC, 729 F.
Supp. 3d 84, 107 (D. Mass. 2024) (internal quotations omitted).
At trial, plaintiff introduced evidence of internal communications between EOFlow
employees, including Kim, that reflected both their knowing acquisition of the trade secrets and
their intentional concealment of the misappropriation. For example, multiple exhibits presented
to the jury revealed that Kim stated that EOFlow would struggle to “gracefully” explain the
similarities in design between the EOPatch 2 and the Omnipod “without making it sound like a
piracy.” (Tr. Ex. 443.1). Other evidence introduced at trial showed internal EOFlow documents
stressing the importance of not revealing information related to the EOPatch 2 to plaintiff’s
employees. A jury could reasonably infer from that evidence that Kim—and by extension,
EOFlow Co., Ltd.—knowingly sought to conceal the misappropriation.

It may be true, as defendants emphasize, that EOFlow did not hire employees directly
from plaintiff, and instead only hired those who had been separated from plaintiff for several
years. And perhaps EOFlow did not initially hire those employees for the purpose of acquiring
plaintiff’s trade secrets. But those assertions do not compel a jury finding in favor of defendants.
Rather, the jury could evaluate the evidence presented by both parties and reasonably conclude
that defendants’ actions rose to the level of willful and malicious misappropriation based on the
substantial evidence of theft and subsequent concealment.
Defendants also contend that the jury’s determination that only Kim, Welsford, and
EOFlow Co., Ltd., acted willfully and maliciously among the defendants is illogical.4 But the

evidence presented, particularly the email correspondences involving Kim, readily allows a
rational jury to understand Kim’s behavior (which may be attributable to EOFlow Co., Ltd.) to
be more egregious than the behavior of the other defendants.
Ultimately, the jury’s determination that Kim and EOFlow Co., Ltd., acted willfully and
maliciously was well supported by the record evidence. Thus, defendants’ motion for judgment
as a matter of law will be denied as to that issue.5

4 Again, the Court need not address the jury’s finding with respect to Welsford because he is subject to the
Court’s Rule 54(b) final judgment and a separate permanent injunction order, entered pursuant to a separately
negotiated agreement between plaintiff and Welsford, Malave, and DiIanni. (ECF Nos. 924-25).
5 Defendants move in the alternative for a new trial based on the jury’s determination that Kim and
EOFlow Co., Ltd., acted willfully and maliciously. For the same reasons supporting the denial of the Rule 50(b)
motion, the motion for a new trial will be denied as to that issue.
4. Damages Award
Defendants next contend that the award of monetary damages was not supported by the
evidence. Under the DTSA, damages may be awarded for “actual loss caused by the
misappropriation of the trade secret . . . and . . . for any unjust enrichment caused by the
misappropriation of the trade secret that is not addressed in computing damages for actual loss.”

18 U.S.C. § 1836(a)(3)(B). Plaintiff did not present evidence concerning any actual out-of-
pocket loss from the misappropriation. Instead, it presented two theories of unjust-enrichment
damages at trial. The first theory estimated the “head start” that defendants obtained by
acquiring plaintiff’s trade secrets and building the EOPatch 2 with that information in hand. The
second theory estimated the market value of the trade secrets.
Defendants take issue with plaintiff’s theories and the jury’s damages award, contending
that (1) plaintiff’s damages theories were based on speculation and unreliable estimates and (2)
joint-and-several liability between Kim and EOFlow is inconsistent with the evidence presented
at trial.6
a. Speculative and Unreliable Damages Estimates
According to defendants, plaintiff’s theories of damages were speculative and unreliable

because they were based on estimates by Ian McLaughlin concerning the effort that plaintiff’s
engineers devoted to developing each trade secret. In defendants’ view, McLaughlin’s estimates
were “heavily dependent on his memory” and therefore not reliable. (Def.’s Mot. at 18).

6 Defendants also raise objections to the award of damages based on two other legal theories: (1) plaintiff
failed to account for and exclude costs unrelated to the trade secret, and (2) plaintiff failed to account for defendants’
limited use of the trade secrets. (Def.’s Mot. at 20-22). However, defendants did not raise either of those two
arguments in their Rule 50(a) motion, and they are therefore waived. See Cornwell, 830 F.3d at 25 (stating that a
Rule 50(b) movant “cannot use such a motion as a vehicle to introduce a legal theory not distinctly articulated in its
[Rule 50(a) motion]”).
A calculation of “damages must be shown with reasonable certainty, though
mathematical precision is not required.” Diomed, Inc. v. Vascular Sols., Inc., 2006 WL 516756,
at *1 (D. Mass. Mar. 2, 2006). And “in business tort cases, where the focus is on the
wrongfulness of the defendant’s conduct, the award of damages is permissible on meager
evidence.” Id. (internal quotations omitted).

The damages evidence introduced by plaintiff in this case was sufficient to support the
award. At trial, McLaughlin testified that he determined his estimates after consulting with other
engineers with whom he had worked to develop the Omnipod while employed by plaintiff over
the prior two decades. He also testified about his extensive experience developing the Omnipod,
allowing a jury to reasonably believe that he could reliably recall the amount of effort expended
to create and refine each of the trade secrets. Defendants cross-examined McLaughlin at length,
but nothing arose from that examination that would require a finding that McLaughlin’s
estimates were obviously unreliable. DiIanni himself did not dispute McLaughlin’s estimates
during his testimony, even though he helped develop the Omnipod while working for plaintiff as

an engineer during the relevant time period. The jury ultimately found McLaughlin’s testimony
credible, and this Court is not free to reject that assessment at the Rule 50(b) stage. See Barkan,
627 F.3d at 39.
Defendants further contend that the award of damages for the misappropriation of the
DHF was particularly unreasonable because McLaughlin failed to “provide an estimate of the
efforts that went into developing [the DHF],” and that, in any event, the award was overinclusive
because it did not account for plaintiff’s removal of two elements of the asserted DHF trade
secret. (Def.’s Mot. at 19-20). But McLaughlin, along with multiple other witnesses, testified
that the DHF was a compilation of information and contained the entire set of design work that
went into developing the Omnipod. And at no point during McLaughlin’s testimony did he
suggest that his work estimates would have materially changed as a result of removing two DHF
sub-components from the asserted trade-secrets list.
Plaintiff was not required to present more detailed evidence, as the evidence presented
satisfied its burden to establish its damages. And again, defendants had ample opportunity to

cross-examine McLaughlin and others about the specifications of the DHF’s value. The jury’s
determination of the DHF damages award was thus supported by the evidence.7
b. Joint-and-Several Liability
Defendants next ask the Court to rule as a matter of law that Kim should not be found
jointly and severally liable with EOFlow. (Def.’s Mot. at 22). Defendants assert that plaintiff is
judicially estopped from seeking joint-and-several liability after it had asked the jury to only
award damages of $1 per trade secret for the non-EOFlow defendants. Defendants further
contend that plaintiff did not establish a sufficient basis to support a finding of joint-and-several
liability between EOFlow and Kim.
The Court ruled at the close of evidence that as a matter of law, Kim and EOFlow can be

held jointly and severally liable. That is because in a trade-secret misappropriation case where
damages are based on unjust enrichment, traditional equitable principles suggest that joint-and-
several liability is proper when the defendants act as “partners engaged in concerted
wrongdoing,” evidenced by their shared enjoyment of the fruits of the misappropriation. See

7 For the reasons stated in the Court’s memorandum and order concerning plaintiff’s motion for a
permanent injunction, the damages award will be reduced to $59.4 million to avoid conferring on plaintiff an
impermissible double recovery. That order does not call into question the evidentiary basis supporting the jury’s
damages award. Rather, plaintiff has elected to forgo a substantial portion of the damages award in favor of a
permanent injunction that, among other things, enjoins defendants from using, possessing, selling, or otherwise
distributing plaintiff’s trade secrets anywhere in the world. See Dopp v. HTP Corp., 947 F.2d 506, 515 (1st Cir.
1991) (stating that “[g]enerally, an election between inconsistent remedies is made after a verdict is entered but prior
to the entry of judgment”).
BioPoint, 110 F.4th at 352. As EOFlow’s Chief Executive Officer and one of its largest
shareholders, Kim stood to earn a substantial profit—approximately $100 million in personal
gain from the agreed-upon sale to Medtronic, according to the evidence—from the company’s
misappropriation. Kim may therefore be held jointly and severally liable for the damages award.
Moreover, judicial estoppel does not bar the application of joint-and-several liability.

“[A]t a minimum, two conditions must be satisfied before judicial estoppel can attach. First, the
estopping position and the estopped position must be directly inconsistent, that is, mutually
exclusive. Second, the responsible party must have succeeded in persuading a court to accept its
prior position.” Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004)
(citations omitted). Here, plaintiff never asserted that Kim and EOFlow should not be held
jointly and severally liable. Indeed, it sought joint-and-several liability for all defendants, which
the Court only granted as to Kim and EOFlow. Plaintiff’s request that the jury only award $1-
worth of damages for Kim’s misappropriation is not a concession or disclaimer of its consistent
position that defendants be held jointly and severally liable. Judicial estoppel is therefore not

applicable.
Thus, the motion for judgment as a matter of law will be denied as to the application of
joint-and-several liability to Kim and EOFlow.
B. Motion for a New Trial
Defendants move for a new trial on multiple grounds. Defendants first repeat the
arguments made in their Rule 50(b) motion to contend that the verdict and damages award were
unsupported by the weight of the evidence. (Def.’s Mot. at 23). However, nothing in
defendants’ Rule 50(b) motion raised a concern that the jury’s verdict and damages award were,
in fact, against the weight of the credible evidence, let alone amounted to a “miscarriage of
justice.” Foley, 972 F.3d at 16 (internal quotations omitted). Thus, for the reasons supporting a
denial of defendants’ Rule 50(b) motion, defendants’ motion for a new trial on the basis of the
weight of the evidence will be denied.
Defendants next assert that a new trial is warranted because the final jury instructions,
verdict form, and adverse-inference instruction were flawed. (Def.’s Mot. at 24). Aside from
stating that their objections are already reflected in the record, defendants do not articulate the

legal error or prejudice that they believe the jury instructions and verdict form presented. And as
for the adverse-inference instruction, after a thorough examination of the relevant facts, the
Court found that Welsford intentionally destroyed evidence after a duty arose to preserve files
for litigation. That finding properly supported an adverse-inference instruction under Fed. R.
Civ. P. 37(e). To avoid potentially confusing the jury, the Court decided against referring to a
separate instance of file deletion by Hamm, another Nephria Bio employee, in that adverse-
inference instruction. Nothing about the final jury instructions, verdict form, and adverse-
inference instruction rise to the level of an injustice that would warrant granting a new trial.
Defendants next contend that the Court’s explanations and instructions during the course

of trial improperly “amounted to clues to the jury” that unfairly prejudiced defendants. (Def.’s
Mot. at 24). But the Court’s instructions during trial were not only permissible, but were
important “to acquaint the jury with the governing law.” Shervin v. Partners Healthcare Sys.,
Inc., 804 F.3d 23, 47 (1st Cir. 2015). The mid-trial explanations served to clarify the applicable
law and ensure that the jury could reasonably understand the case as it developed. None of the
statements that defendants expressly object to in their motion are inherently unfair to defendants;
rather, they merely explain the relevant aspects of trade-secret-misappropriation law.
Furthermore, defendants did not contemporaneously object to essentially any of the
Court’s explanations to the jury during trial. That failure alone renders defendants’ argument
waived. See Matton v. White Mountain Cable Const. Corp., 190 F.R.D. 21, 23 (D. Mass. 1999)
(stating that “where a party seeks a new trial based on allegations of judicial misconduct, [a]n
objection to the alleged misconduct is ordinarily required, either at the time of the misconduct or
at the next available opportunity outside the jury’s presence”).
Finally, defendants assert that the Court made “numerous one-sided, unfair, and

prejudicial interjections that . . . stacked the deck against [d]efendants.” (Def.’s Mot. at 25).
Defendants mischaracterize the Court’s statements at trial. In light of the highly complex and
technical concepts involved in the case, the Court intermittently posed brief, clarifying questions
to the witnesses to facilitate better jury comprehension. The Court clearly acted within its
authority in doing so. See Fed. R. Civ. P. 614(b). But beyond that, the Court’s questions were
especially appropriate in this context given the complicated subject matter. There was no risk of
prejudice to defendants, as the questions were balanced and directed only at clarifying technical
witness testimony. See Gaydar v. Sociedad Instituto Gineco-Quirurgico y Planificacion, 345
F.3d 15, 24 (1st Cir. 2003).

Moreover, at trial, defense counsel at times advanced improper questions and remarks. In
response, the Court directed counsel to stay within the permissible bounds of examination. It is
well within the Court’s authority to ensure proper, efficient, and fair proceedings, including by
requiring defense counsel to adhere to applicable evidentiary and procedural rules. See Liteky v.
United States, 510 U.S. 540, 555-56 (1994). And, again, defendants did not object to the Court’s
statements during trial, rendering their argument waived. See Matton, 190 F.R.D. at 23. A new
trial will therefore not be granted.
III. Conclusion
For the foregoing reasons, defendants’ renewed motion for judgment as a matter of law
and motion for a new trial are DENIED.
So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: April 24, 2025 Chief Judge, United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10851251. Public record. Not legal advice.