                 REPORTED


   IN THE COURT OF SPECIAL APPEALS

               OF MARYLAND

                   No. 1988

            September Term, 2014


BOSTON SCIENTIFIC CORPORATION, ET AL.

                      v.

  MIROWSKI FAMILY VENTURES, LLC



        Wright,
        Nazarian,
        Eyler, James R.
         (Retired, Specially Assigned),

                      JJ.



             Opinion by Wright, J.


  Filed: January 29, 2016
      This appeal rises from the judgment of the Circuit Court for Montgomery County

in favor of the appellee-plaintiff, Mirowski Family Ventures, LLC (“MFV”),1 against

appellant-defendant, Boston Scientific Corporation (“BSC”), in the amount of

$86,536,857.00 for royalties owed for 2002 and 2003, $142,612,000.00 for damages in

an Indiana lawsuit, and $80,200,000.00 for damages in a Delaware lawsuit. BSC

presents these questions for review:

           1. Whether the circuit court erred in granting summary judgment that
              BSC had breached the “right to participate” provision of the 2004
              License Agreement despite genuine dispute of material facts.

           2. Whether the circuit court erred in its interpretation of the “mutual
              agreement” provision of the 2004 License Agreement and in arriving
              at such an interpretation despite determining that the provision was
              ambiguous.

           3. Whether the circuit court erred in allowing the unsubstantiated
              testimony of Roderick McKelvie in support of MFV’s Improper
              Agreement claim and in denying BSC’s JMOL and JNOV motions
              as to that claim, which were made on the ground that the claim
              depended on Mr. McKelvie’s unsubstantiated testimony.

           4. Whether the circuit court erred in excluding evidence of St. Jude’s
              invalidity defenses in the St. Jude Delaware litigation and whether,
              as result, the jury’s verdict in damages award on the Delaware
              component of MFV’s Improper Agreement claim should be vacated.

           5. Whether the circuit court erred in allowing the “reasonable
              settlement” damages opinion of Dr. Mohan Rao, which failed to take
              into account St. Jude’s settlement positons in the St. Jude Indiana
              and St. Jude Delaware Litigations; and whether, as a result, the
              jury’s damages awards for the Improper Agreement claim should be
              vacated.



      1
          MFV is a Maryland Limited Liability Company.
            6. Whether the jury’s damages award for the Improper Agreement
               claim should be vacated because they relied on premises that
               contradicted the historical record of the St. Jude Indiana and St. Jude
               Delaware Litigations.

            7. Whether judgment should be entered in BSC’s favor with respect to
               MFV’s Accrued Royalties claim because the primary theory on
               which MFV relied was legally erroneous.

            8. Whether the jury’s verdict with respect to MFV’s Accrued Royalties
               claim should be vacated because of the circuit court’s erroneous
               rulings on the patent law issues on which MFV’s alternative theories
               depended, including the circuit court’s refusal to instruct the jury on
               issues of patent law.


            9. Whether the circuit court erred in deciding as a matter of law prior to
               trial that MFV was entitled to “accrued royalties” for overseas sales
               of ICDs in contravention of Federal Circuit precedent.

For the reasons discussed below, we affirm the circuit court.

                        FACTS AND PROCEDURAL HISTORY

   I.       Patent origins and the BSC license agreements

        Dr. Michel Mirowski developed an implantable cardiac defibrillator (“ICD”), a

device that is implanted in the body and capable of preventing sudden cardiac death.

Since the first patient received the ICD in 1980, millions of others have had the device

implanted. Later on, cardiac resynchronization therapy (“CRT”), building on the ICD

technology, was invented to treat congestive heart failure. Dr. Mirowski, and through

what later became MFV, owned the patents to both inventions: the ICD2 is covered by




        2
       The ICD is patented as an “implantable heart stimulator and stimulation
method.”
                                              2
patent 4,407,288 (“the ‘288 patent”), and the CRT technology is covered by patent

RE38,119 (“the ‘119 patent”).

         MFV originally licensed the two patents exclusively to Guidant, a corporate entity

later acquired by BSC, in 1973 (“1973 License Agreement”). The licenses were then

restated in 2004 (“2004 License Agreement”). The licenses gave Guidant (and

subsequently BSC) the rights to sublicense any or all of the MFV patents on its own

terms, as long as MFV received a 3% royalty on the initial sale as well as the sale of

covered products. Guidant also received “the right to bring and conduct suit or actions in

its name against others for infringement of any [licensed] patent . . . , the same as if such

patent were the exclusive property of GUIDANT.” Importantly, the license agreement

reserved for MFV certain litigation rights:3 (1) BSC must obtain MFV’s “mutual

agreement” to “bring or conduct” litigation;4 (2) MFV has the “right to participate” in

litigation; and (3) MFV and BSC must “divide [] equally” any proceeds of infringement

litigation.

   II.        Lawsuits against St. Jude


         3
         BSC was the manufacturer of the products and thus was the only party that could
bring a claim for lost profits. As a result, MFV’s interests in litigation for infringement
of its patents were tied to BSC’s. See Wechsler v. Macke Int’l Trade, Inc., 486 F.3d
1286, 1293 (Fed. Cir. 2007) (“Normally, if the patentee is not selling a product, by
definition there can be no lost profits.”) (Citation omitted).
         4
        The circuit court defined this obligation to mean that BSC “must seek
Mirowski’s agreement to an important litigation decision, including any settlement that
could affect Mirowski’s patent rights, before taking action.” It added that BSC “must
consult with and advise Mirowski of its intentions at such a time and under such
circumstances that would enable Mirowski to take action to protect itself, if it chooses to
do so.”
                                              3
             a. St. Jude litigation in Indiana regarding the ‘288 patent

       In 1996, Guidant5 and MFV, as joint plaintiffs, through mutual agreement, sued

St. Jude in Indiana federal court for selling ICD devices without a sublicense for the

patents (“St. Jude Indiana Litigation”). The jury returned a verdict in favor of Guidant

and MFV for the sum of $140 million, finding that St. Jude had infringed the ‘288 patent.

The trial judge reversed the jury verdict on motion for judgment notwithstanding the

verdict (“JNOV”), ruling that the patent was invalid.

       Guidant and MFV mutually agreed to appeal the court’s decision as to a key

“method claim” 6 of the ‘288 patent (“Claim 4”).7 While the St. Jude Indiana Litigation



       5
           Guidant, the predecessor-in-interest to BSC, was headquartered in Indiana.
       6
         Unlike a claim that would cover a device or apparatus, “a method claim is not
directly infringed by the sale of an apparatus even though it is capable of performing only
the patented method. A sale of the apparatus is not a sale of the method. A method claim
is directly infringed only by one practicing the patented method.” Joy Techs., Inc. v.
Flakt, Inc., 6 F.3d 770, 774-75 (Fed. Cir. 1993) (emphasis in original).
       7
           Claim 4 of the ‘288 patent, and claim 1 on which it depends, states:
       1. A method of heart stimulation using an implantable heart stimulator
       capable of detecting a plurality of arrhythmias and capable of being
       programmed to undergo a single or multi-mode operation to treat a detected
       arrhythmia, corresponding to said mode of operation the method
       comprising the steps of:
               (a) determining a condition of the heart from among a plurality of
       conditions of the heart;
               (b) selecting at least one mode of operation of the implantable heart
       stimulator which operation includes a unique sequence of events
       corresponding to said determined condition; and
               (c) executing said at least one mode of operation of said implantable
       heart stimulator thereby to treat said determined heart condition.

                                     *      *       *
                                                4
was on appeal, Guidant and MFV entered into an agreement (“the 2004 Royalty

Agreement”) in which Guidant “suspended payment of royalties on products covered by

the ‘288 Patent pending the outcome of the appeal.” The agreement then outlined: (1) if

there is a “final non-appealable judgment” that the ‘288 patent was valid and St. Jude did

infringe upon it, Guidant would pay MFV “a sum equal to all royalties that accrued

pursuant to the License Agreement on products covered by any such claims” from the

date the royalties were suspended until they became reinstated, along with interest at the

prime rate;8 and (2) if the Federal Circuit found that St. Jude did not infringe the ‘288

patent, Guidant would pay MFV a flat sum of $15 million. In August 2004, the appellate

court remanded the St. Jude Indiana case, holding that the ‘288 patent was not invalid.

On remand, the district court found that at least some St. Jude devices were used

according to the patented method, but limited damages to only those devices that were

proved to have infringed on the patented method, not on every device capable of

performing the patented method.

           b. St. Jude Litigation in Delaware Regarding the ‘119 Patent

       Guidant and MFV brought a second suit against St. Jude in the U.S. District Court

for the District of Delaware for allegedly infringing the ‘119 patent (“the St. Jude




      4. The method of claim 1, wherein at least one mode of operation of said
      implantable heart stimulator includes cardioversion.
Boston Scientific Corp. v. Mirowski Family Ventures, LLC (“BSC 2013”), No. 1:11-CV-
736-WTL-DKL (S.D. Ind. Feb. 13, 2013).
       8
         Guidant set up an account for royalty payments for all the ICDs it sold during
this period.
                                              5
Delaware case”) in 2004. After two years, the parties completed fact discovery but the

issues in dispute had not been considered by the court.

   III.    BSC acquires Guidant and Settles with St. Jude

       In April 2006, BSC completed its purchase of Guidant and became the exclusive

licensee to the MFV patents. BSC then began discussing a settlement with St. Jude (“the

BSC-St. Jude Settlement”) that included not only unresolved issues from the St. Jude

Delaware case and the St. Jude Indiana Litigation, but also “a number of other cases in

which BSC was adverse to St. Jude.” MFV asserts that these were cases “that presented a

serious risk to BSC and had nothing to do with Mirowski.” The parties disagree as to

whether MFV was given sufficient notice of the BSC-St. Jude Settlement discussions.9

Although MFV claims the BSC-St. Jude Settlement discussions were held in secret, MFV

also met with St. Jude to discuss the Indiana and Delaware cases, but a settlement was

never reached between the two parties. MFV maintains that as a result of its failed

negotiations with St. Jude, it “believed settlement with St. Jude was off the table,” and

was thus surprised to hear of the BSC-St. Jude Settlement.




       9
         MFV contends that “BSC did not notify Mirowski of the negotiations or propose
settlement terms until after BSC and St. Jude signed the BSC-STJ Settlement on July 29,
2006.” BSC, however, claims that “[s]hortly [after acquiring Guidant], BSC notified
MFV that it was in discussions with St. Jude concerning settlement and urged MFV and
St. Jude to reach their own agreement.”

                                             6
         The BSC-St. Jude Settlement dismissed four pending litigations by St. Jude

against BSC in exchange for the value of the Indiana and Delaware cases.10 MFV claims

that a BSC expert valued the damages in the St. Jude Delaware case at at least $131

million before the BSC-St. Jude Settlement, and then after the settlement at only $16.8

million. MFV asserts that the “87% drop in damages [] was directly attributable to the

BSC-STJ Settlement.”

         MFV continued with the Delaware and Indiana cases against St. Jude. In July

2007, MFV and St. Jude settled the Delaware case for $35 million dollars. The Indiana

case continued until 2009, when the Federal Circuit again concluded that the ‘288 patent

was not invalid and that St. Jude had infringed it, and MFV settled the remnants for $1.9

million.

   IV.        Litigation between BSC and MFV

         After learning of the BSC-St. Jude Settlement, MFV informed BSC that BSC had

breached the 2004 License Agreement because (1) the separate negotiations deprived

MFV of the “right to participate” in the St. Jude litigations and caused damages, and (2)

BSC failed to obtain MFV’s “mutual agreement” before entering into the BSC-St. Jude

settlement. Further, BSC did not pay MFV the amount of royalties agreed upon in the

2004 Royalty Agreement that determined what BSC owed MFV at the end of the St. Jude

Indiana Litigation. Because the ‘288 patent was deemed valid and St. Jude found to have



         10
          In the BSC-St. Jude settlement, BSC agreed to only pursue certain damages,
forgo certain damages, and cap the royalty fee at 3%. BSC also agreed not to introduce
certain evidence against St. Jude.
                                             7
infringed upon it, BSC owed MFV “a sum equal to all royalties that accrued” between

2002-2003, plus interest. While both parties agreed that “the sum” plus interest equaled

over $86.5 million dollars, BSC paid MFV only $6.7 million of this amount. BSC based

this amount on its interpretation that royalties were due only the percentage of St. Jude

devices that allegedly infringed the ‘288 patent in the St. Jude Indiana Litigation,

excluding royalties on devices and accessories that BSC had paid in the past pursuant to

the 2004 License Agreement.

              i. BSC sues MFV for declaratory judgment in Indiana Federal Court

       On May 31, 2011, Boston Scientific filed its “Complaint for Declaratory

Judgment” seeking declaratory judgments that, among other things, the payments it had

made to MFV satisfied its royalty obligations under the 2004 License Agreement. After

several pre-trial motions, BSC brought to the court’s attention Gunn v. Minton, 133 S.Ct.

1059 (2013), a Supreme Court decision handed down while the parties were preparing for

trial. Gunn limited the jurisdiction of federal courts to hear certain cases pertaining to

patent law. BSC “suggested that, pursuant to [the] holding [in Gunn], the [Indiana

District] Court lacked subject matter jurisdiction over this case.” Mirowski Family

Ventures, LLC v. Bos. Sci. Corp., 958 F. Supp. 2d 1009, 1010 (S.D. Ind. 2013). 11 The


       11
          Both BSC and MFV invoked the district court’s jurisdiction under 35 U.S.C. §
1338, which gave the federal courts exclusive jurisdiction over claims whose resolutions
turned on patent law issues, even where the underlying claims were based in contract or
tort law. Gunn, 133 S. Ct. at 1068, held that § 1338 does not deprive state courts of
subject matter jurisdiction, thereby eliminating the exclusive jurisdiction of federal courts
over cases involving patent claims. Without § 1338, a federal court could not hear the
case between MFV and BSC because there was no federal question nor diversity of
citizenship.
                                              8
district court agreed and dismissed the case for lack of subject matter jurisdiction. Id. at

1018.

               ii.    MFV commences litigation in Montgomery County.

        MFV filed the suit from which this appeal arises in the Circuit Court for

Montgomery County after BSC argued that the Indiana District Court lacked jurisdiction,

and the Montgomery County case proceeded after the federal case was dismissed. Prior

to trial, the circuit court granted MFV’s motion for summary judgment that BSC

breached MFV’s “right to participate” as outlined in the 2004 Royalty Agreement. After

three weeks of trial, the jury returned a verdict in favor of MFV. On the claim of

royalties owed, the jury awarded MFV the full stipulated value of $86.5 million; on the

claim for breach of the 2004 License Agreement related to the BSC-St. Jude Settlement,

the jury returned a verdict for less than MFV requested, but still amounting to $222

million for both the Delaware and Indiana cases.

        Additional facts will be included in the discussion as they become relevant.

                                         Discussion

   I.      The circuit court committed no errors with respect to the “Improper
           Agreement” claim.

           a. The circuit court appropriately granted partial summary judgment in
              favor of MFV that BSC breached the “right to participate” provision
              of the 2004 License Agreement.

        BSC avers that the circuit court wrongly granted partial summary judgment in

MFV’s favor when it ruled that there was no genuine dispute of material fact as to

whether the July 2006 Agreement between BSC and St. Jude violated MFV’s contractual


                                              9
“right to participate.”12 The reviewing court reviews an order granting summary

judgment de novo, conducting “an independent review of the record to determine if there

is a dispute of material fact.” Injured Workers’ Ins. Fund v. Orient Exp. Delivery Serv.,

Inc., 190 Md. App. 438, 450-51 (2010) (citation omitted).

       In our review of the granted summary judgment, we must “examine the same

information from the record and determine the same issues of law as the trial court.” La

Belle Epoque, LLC v. Old Europe Antique Manor, LLC, 406 Md. 194, 209 (2008)

(citation omitted). We therefore “only look to the evidence submitted in opposition and

support of the motion for summary judgment in reviewing the trial court’s decision to

grant the motion.” Id. (citations omitted). In its brief, however, BSC relies entirely on

the evidence presented during the trial. Because we must examine the information the

circuit court relied on to make its decision, evidence from the trial is not relevant to our

review. While the volumes of record extract contain the transcript of the hearing before

the circuit court regarding summary judgment as well as BSC’s opposition brief to

MFV’s motion for partial summary judgment, those extracts alone do not place us in an

adequate position to review the record de novo. See Boland v. Boland, 423 Md. 296, 366

(2011) (explaining that an appellate court must “independently review the record to

determine whether” a dispute of material fact exists). BSC, as the appellant, is tasked



       12
            Section 2 of Article VII of the 2004 License grants MFV the following:

       “MIROWSKI shall have the right to participate in any infringement suit or
       action brought by [BSC] under the terms of the Exclusive License
       Agreement.”
                                              10
with the responsibility of directing this Court to the portions of the record relevant to its

challenge. As we have previously stated, the reviewing court “cannot be expected to

delve through the record to unearth factual support favorable to [the] appellant.” Rollins

v. Capital Plaza Assocs., L.P., 181 Md. App. 188, 201 (2008) (citing von Lusch v.

State, 31 Md. App. 271, 282 (1976)).

       Even if we could consider BSC’s argument on the merits based on the evidence on

which it relies, we would nevertheless affirm the circuit court’s granting of partial

summary judgment. BSC claims that a dispute of material facts exists regarding the

“right to participate” provision because BSC and MFV disagree on whether MFV did, in

fact, participate. BSC maintains that MFV had an equal chance to participate in its

dealings with St. Jude because 1) MFV had its own settlement negotiations with St. Jude,

and 2) MFV knew that BSC was having discussions with St. Jude but never asked to join

in those discussions.

       While MFV does not dispute that those two things are true, BSC neglects to note

the timing of the two 2006 settlement discussions: MFV’s discussions with St. Jude

occurred in June of 2006 and concluded without reaching an agreement, whereas the

BSC-St. Jude discussions took place through June and July of 2006, leading to the BSC-

St. Jude Settlement on July 29, 2006. While MFV knew that BSC was negotiating with

St. Jude in June, it was unaware that negotiations between the two carried into July.13



       13
         MFV alleged that BSC represented that settlement talks would continue up until
June 30, 2006. It claims that it relied on this as a deadline for the discussions with St.
Jude, and therefore was surprised to hear of discussions continuing into July 2006. MFV
                                              11
BSC offers no evidence to show that MFV knew of the July discussions. Thus, the

material facts – MFV’s lack of knowledge about the BSC-St. Jude Settlement – are

undisputed. No evidence at trial showed otherwise.

            b. The circuit court did not err in allowing the jury to decide whether
               BSC violated the “mutual agreement” provision of the 2004 License
               Agreement.

       Next, BSC argues that “the circuit court erred by allowing the jury to find that

BSC breached the ‘mutual agreement’ provision.” The provision reads: “[BSC] shall,

subject to mutual agreement between [BSC] and MIROWSKI, bring and conduct suit or

actions against any infringer . . . .” BSC moved for summary judgment on the issue,

which the circuit court denied, finding the term unambiguous. At trial, the circuit court

instructed the jury on its interpretation of the term.14 BSC challenges this interpretation

as well as the jury’s decision on the issue. On review, we find that the circuit court did

not err in interpreting the provision and in allowing the jury to determine whether BSC

breached it, and we will not overturn the findings of the jury.

               i. The circuit court’s interpretation of the “mutual agreement”
                  provision was appropriate.

       Again, we review the circuit court’s decision of a motion for summary judgment

de novo. Injured Workers’ Ins. Fund, 190 Md. App. at 450-51. When reviewing the

denial of summary judgment, we look to see if there existed a genuine dispute of material


was left with the impression that negotiations with St. Jude would not progress further
between it or BSC, and they were going to trial.
       14
        BSC itself asked the court to instruct the jury on the court’s interpretation of the
“mutual agreement” provision.
                                             12
facts. Id. When reviewing contract construction, the circuit court may grant summary

judgment if a contract is unambiguous. GMG Capital Invs., LLC v. Athenian Venture

Partners I, L.P., 36 A.3d 776, 778 (Del. 2012). Our review of the court’s determination

of whether the contractual language is ambiguous is also de novo. Calomiris v. Woods,

353 Md. 425, 435 (1999).

       BSC relies heavily on the Indiana contract proceedings, in which the federal

district judge found the “only reasonable interpretation of the phrase ‘subject to mutual

agreement’ in the contract is that [BSC] must bring and conduct suit against infringers

with sales exceeding $75,000, unless Mirowski and [BSC] agree that suit should not be

brought.” Boston Scientific Corp. v. Mirowski Family Ventures, LLC (“BSC 2012”), No.

1:11-CV-736-WTL-DKL (S.D. Ind., Nov. 30, 2012) (emphasis in original). What this

means, the district judge explained, is that “‘mutual agreement’ applies not to [BSC’s]

subsequent decisions in the course of litigation, but rather explains the circumstances

under which [BSC] is relieved of its obligation to bring suit.” Id. The judge, therefore,

found the “mutual agreement” provision inapplicable to the BSC-St. Jude Settlement. Id.

Accordingly, as the circuit court observed, the Indiana district court’s construction leaves

the “right to participate” provision as “the only ground for potential contractual liability.”

       We are not bound to afford any weight to the decisions and findings of the Indiana

district court deciding the contractual dispute between MFV and BSC. See Cates v.

State, 21 Md. App. 363, 372 (1974) (explaining that rulings from other jurisdictions are

persuasive authority, and “[i]f the reasoning which supports them fails to persuade, they



                                             13
are no authority at all”). Unlike the Indiana district court, the circuit court found “mutual

agreement” to be an unambiguous term meaning:

       BSC must consult with and advise Mirowski of its intentions at such a time
       and under such circumstances that would enable Mirowski to take action to
       protect itself, if it chooses to do so. Whether that occurred in this case, is a
       question of fact.

The circuit court stated that the contract term is an “express promise” made by BSC to

MFV that is not irrelevant.

       A contract is not ambiguous merely “because the parties disagree as to its proper

construction,” Trustees of Indiana Univ. v. Cohen, 910 N.E.2d 251, 257 (Ind. Ct. App.

2009), but rather is ambiguous “only if reasonable persons would differ as to the meaning

of its terms.” Oxford Fin. Grp., Ltd. v. Evans, 795 N.E.2d 1135, 1142 (Ind. Ct. App.

2003) (citations omitted). When interpreting an unambiguous contract, “a court gives

effect to the parties’ intentions as expressed in the four corners of the instrument and

clear, plain, and unambiguous terms are conclusive of that intent.” Id. (citation omitted).

However, “the court is under an obligation to read the agreement in a manner which

harmonizes its provisions as a whole and to give effect to the parties’ expressed intent.”

Trustees of Indiana Univ., 910 N.E.2d at 257 (citations omitted); see also Oxford Fin.

Grp., Ltd., 795 N.E.2d at 1142 (“Particular words and phrases cannot be read alone and

the parties’ intentions must be determined by reading the contract as a whole.”) (Citation

omitted).

       Looking at the “mutual agreement” provision in the context of the 2004 License

Agreement “as a whole,” id., we agree that the term is unambiguous because reasonable


                                              14
persons would not differ as to its meaning when the provision is read as a whole rather

than examining each phrase therein in isolation. Oxford Fin. Grp., Ltd., 795 N.E.2d at

1142. The 2004 License Agreement overall outlines the rights and responsibilities of

BSC and MFV individually and to each other with regard to the ‘299 patent. It affords

BSC the exclusive license to MFV’s patents and the right to bring suit to protect them.

MFV, as the patent holder, therefore, has a serious stake in the outcome of any potential

dispute or litigation between BSC and infringers. Thus, construing the portion of the

contract that calls for “mutual agreement” to “bring and conduct suit or action against

infringers” to mean anything short of the obligation BSC has to inform and seek MFV’s

advice on its actions in a suit would require reading the contract to mean that MFV

reserved no authority for itself to have a say or impact the status of its patents once

litigation commenced. Such a reading of the contract, as the circuit court and MFV point

out, would permit BSC to act in bad faith by settling without MFV’s permission. No

reasonable person could read the agreement that way.

       Furthermore, the interpretation of the Indiana district court, which BSC urges us to

adopt, is that the “mutual agreement” provision merely “explains the circumstances under

which Boston Scientific is relieved of its obligation to bring suit,” but does not apply to

BSC’s “subsequent decisions in the course of litigation.” However, the language of the

agreement reads that “[BSC] shall, subject to mutual agreement between [BSC] and

MIROWSKI, bring and conduct suit or actions . . . .” (Emphasis added). The Indiana

district court’s construction completely disregards the term “conduct,” which

immediately follows the provision “subject to mutual agreement.” A reading of the plain

                                             15
language of the agreement urges the circuit court’s interpretation. Accepting the circuit

court’s interpretation of the provision, we also conclude that it appropriately instructed

the jury as to what “mutual agreement” means.

              ii. The matter was appropriately considered by the jury, whose factual
              finding was proper.

       BSC next argues that the jury did not have sufficient evidence to find that BSC

violated the “mutual agreement” provision, even as interpreted by the circuit court, and

asks us to overturn the jury’s factual finding. We disagree with BSC and see no reason to

overturn the jury’s finding. A case must be submitted to the jury for consideration if

there exists “any evidence, no matter how slight, that is legally sufficient to generate a

jury question.” Publish Am., LLP v. Stern, 216 Md. App. 82, 97 (2014) (citation

omitted). There was ample evidence presented at trial to present the question to the jury.

The jury heard testimony on the issue from: Sidney Silver, MFV’s counsel; Ginat

Mirowski; and four of BSC’s in-house counsel. BSC also presented its own fact

witnesses. There being “sufficient” evidence to send the question to the jury, “the jury

and the jury only has the power to assess the weight of the evidence, a power which

passes to the trial judge’s discretion upon motion for a new trial.” Owens-Corning

Fiberglas Corp. v. Garrett, 343 Md. 500, 521 (1996) (citation omitted). The reviewing

court “do[es] not review the weight of the evidence after it has been passed upon by the

jury.” Benkoe v. Plastic Assembled Prods., Inc., 231 Md. 419, 420 (1963) (per curiam).

Because the question was appropriately presented to the jury, and the jury properly made

its determination, we will not disturb its finding.


                                              16
   II.        The jury appropriately found “causation” in the breach of contract claim
              between BSC and MFV.

         “Under Indiana law . . . , causation is an essential element of liability in a breach

of contract claim.” Shepard v. State Auto. Mut. Ins. Co., 463 F.3d 742, 744 (7th Cir.

2006) (citation omitted). The aggrieved party in a contract claim “must prove that the

alleged breach of contract was a cause in fact of his loss, which requires a showing that

the breach was a ‘substantial factor’ in bringing about the plaintiff’s damages.” Id.

(citation omitted). BSC argues that MFV failed to show such “causation” for its damages

in this case because MFV had a “choice” regarding whether to accept the terms of the

BSC-St. Jude Settlement. Because of this choice, BSC suggests that its actions were not

a “cause in fact” in MFV’s damages.

         BSC asks for a remand and new trial on the basis of “causation” because the

circuit court should not have admitted the MFV-St. Jude Stipulation Agreement (“the

stipulation”),15 also signed by BSC, that the ‘119 patent was not invalid.16 BSC contends

first that the admission of the stipulation is in violation of Rule 408 of the Federal Rules




         15
        The MFV-St. Jude Stipulation Agreement was reached in June 2007, a year after
the BSC-St. Jude Settlement, following the dismissal of the Delaware litigation.
         16
          The stipulation reads: “Pursuant to the terms of the confidential Settlement
Agreement, and subject to its conditions, the St. Jude defendants hereby stipulate,
acknowledge, and agree that one or more of the accused products infringe at least one
claim of U.S. Reissue Patent No. Re 38,119 and the asserted claims of the ‘119 patent are
not invalid or unenforceable.”

                                               17
of Evidence, and thereby Md. Rule 5-408,17 and, therefore, constitutes reversible error.

Second, it argues that the stipulation in not binding on BSC. We disagree.

       Maryland Rule 5-408 states: “(a) The following evidence is not admissible to

prove the validity, invalidity, or amount of a civil claim in dispute: . . . (3) Conduct or

statements made in compromise negotiations or mediation.” BSC, invoking Md. Rule 5-

408 in this context, requires that the stipulation of validity be a statement “made in

compromise negotiations or mediation.” Id. BSC notes, however, that the stipulation

was entered into “following a good-faith mediation.” (Emphasis added). As we have

previously noted about the admission of settlements as subsequent evidence:

       The purpose of Rule 5-408 is to encourage the settlement of lawsuits by
       ensuring that parties need not fear that their desire to settle pending
       litigation and their offers to do so will be construed as admissions. But that
       rule is plainly not applicable to the instant case because the evidence at
       issue concerned previously settled claims and not promises to settle an
       existing claim.

Bittinger v. CSX Transp. Inc., 176 Md. App. 262, 276-77 (2007) (internal citation

omitted). As in Bittinger, Md. Rule 5-408 is equally inapplicable here because the ‘119

patent validity stipulation was part of a “previously settled claim[],” not a “promise[] to

settle.” Id. Talks and discussions taking place during mediation and negotiation

meetings are part of the “promises to settle,” and it is the statements made during these

discussions that are barred by Md. Rule 5-408, not the finished product coming out of

them. “[T]he admission of evidence is committed to the considerable and sound


       17
       “Offers of compromise of disputed claims [are] inadmissible to show liability or
damages” under both Maryland and federal law. Joseph F. Murphy & Paul W. Grimm,
Comparative Guide to the Maryland & Federal Rules of Evidence 157 (2007).
                                              18
discretion of the trial court” and will not be disturbed in the absence of abuse of that

discretion. Id. at 273. We see no such abuse here, and therefore will not remand on this

basis. The properly admissible stipulation operated like a “consent judgment and

adjudication on the merits.”18

       In the alternative, accepting that the stipulation has res judicata effect, BSC

argues that the stipulation nevertheless is not binding in the contract dispute between

BSC and MFV because it was part of a settlement agreement between only MFV and St.

Jude. BSC asserts that “while BSC (as a party to the litigation) signed the St. Jude

stipulation . . . BSC agreed only to the fact that St. Jude entered into a stipulation.”

Having “not itself enter[ed] into or approve[d] the stipulation,” BSC should have been

allowed to raise St. Jude’s invalidity defenses in its defense against MFV.

       BSC’s argument fails because BSC was, in fact, a party to the stipulation of the

validity stipulation for the ‘119 patent for the purposes of preclusive effect. The

language of the stipulation points us to that understanding. The stipulation states:

       The Mirowski plaintiff and the defendants [St. Jude], having entered into a
       confidential settlement of their dispute following a good-faith mediation, it
       is now stipulated and agreed by and among the parties to this action,
       represented by their attorneys . . .




       18
          Quoting the circuit court. The Delaware litigation, which preceded the
stipulation and served as the basis of the parties’ negotiations, was dismissed with
prejudice by the Delaware district court. A dismissal with prejudice accompanied by a
stipulation of validity and infringement “operated under doctrine of claim preclusion to
bar patent holder from bringing another suit” as to issues alleged in the stipulation.
Hallco Mfg. Co. v. Foster, 256 F.3d 1290 (Fed. Cir. 2001).
                                              19
(Emphasis added). At the time, BSC and MFV were still co-plaintiffs in the Delaware

case. Thus, even though the settlement negotiations may have involved only MFV and

St. Jude, the “parties to this action” are MFV, BSC, and St. Jude, with the “action” being

the Delaware litigation. BSC, represented by attorneys, appropriately signed the

stipulation as a party to the action, doing more than merely acknowledging that MFV and

St. Jude entered into the stipulation, as it contends. By signing the agreement, BSC also

approved the stipulation. Therefore, the language of the stipulation does not constrict it

as applying only between MFV and St. Jude, but as to all three parties and their

relationship with each other.

       Importantly, we must note that BSC’s argument that the admission of the

stipulation was wrong because it prevented BSC from presenting evidence of the patent’s

invalidity throughout the trial is without merit. BSC had the opportunity to present such

evidence throughout the trial. The jury heard and considered testimonial evidence put on

by BSC about St. Jude’s defenses in the Delaware litigation from a number of witnesses:

Peter Gafner, a BSC attorney who spoke to St. Jude’s “three defenses” in Delaware; Tom

Filarski, a patent attorney who spoke to the “no error defense St. Jude asserted in the

Delaware case;” and David Benditt, a medical doctor and professor who testified as to his

opinion testimony in support of St. Jude’s defenses in the Delaware case. The evidence

is clear that the jury heard ample evidence about the St. Jude Delaware defenses.

   III.   The jury appropriately decided the 2004 Royalties Agreement claim.




                                            20
      At trial, MFV presented “three independent reasons”19 to support the 2004 Royalty

Agreement claim (or “Count One”). In Count One, MFV asserted that BSC owed the full

amount of the royalties on ICDs sold in 2002-2003 pursuant the 2004 Royalties

Agreement. First, MFV posited that the royalties had already accrued in the normal

course of business under the 1973 license in the amount of $55.6 million, and that MFV

relied on this amount when it signed the 2004 Royalties Agreement (or “accrual

argument”). Second, MFV argued that it is owed the full amount because all ICD sales,

not just ICDs known to have performed the patented method, are royalty bearing because

MFV, as the owner of the patented method, has the power to legally enjoin all ICD sales

capable of performing the infringed method. Third, MFV argued before the jury that it

was owed the full amount of the royalties under the 2004 Royalty Agreement because,

even under BSC’s interpretation, there is evidence that 98% of the ICDs during the 2002-

2003 time frame performed, and thus infringed, the patented method. The jury assessed

the evidence presented and awarded MFV $86.5 million for the royalties on all devices as

a result of BSC’s breach of the 2004 Royalty Agreement.

      BSC argues that the jury’s verdict in favor of MFV on the 2004 Royalties claim

must be vacated because it may have rested on MFV’s first reasoning, which BSC deems


      19
         BSC mischaracterizes MFV’s three evidentiary arguments as “legal theories.”
We disagree with this characterization. MFV merely presented three types of evidentiary
support for one single legal theory: the breach of the 2004 Royalty Agreement. These
arguments were appropriately before the jury which then weighed each parties’
arguments and evidence regarding the claim and award damages based on that claim.




                                           21
to be a “legally erroneous” theory of liability based “on evidence that never should have

been admitted.” The other two reasons MFV presented are cause for remand as well,

BSC claims, because they “implicated patent law issues” on which the jury was not

instructed. We disagree.

            a. MFV’s accrual argument is not legally erroneous.

       BSC alleges that the accrual argument is “legally erroneous” because it “turned

on” evidence that should have never been admitted. At trial, the circuit court admitted as

evidence BSC memoranda that discussed its obligations under the 2004 Royalty

Agreement.20 The memoranda were admitted along with other forms of parol evidence

on both sides to shed light on the interpretation of the 2004 Royalty Agreement,

including the ambiguous phrase “all royalties that accrued pursuant to the License

Agreement on products covered by any such claim of the ‘288 patent.” BSC supports its

argument that the memoranda should have been excluded by referencing only the

decision made by the Indiana district court during the Indiana proceedings.21 Rulings

made by the Indiana court, as mentioned earlier, carry no weight in our review. It further

has no bearing in the instant case because the Indiana court, unlike the circuit court,




       The circuit court denied BSC’s Motion in limine To Exclude Evidence or
       20

Argument Related to “Accrued Royalties” on the ‘288 Patent.
       21
         BSC also supports its proposition by referencing two federal cases from the
Northern District of Illinois. The cases fail to serve as persuasive authority because they
are not on point, not discussing parole evidence, contract interpretation, or Maryland or
Indiana law.
                                             22
found that the operative phrase was not ambiguous, making any parol evidence irrelevant

in the case before him.

       Although the memoranda was properly admitted, the court curbed any prejudice

the evidence may have had on BSC issuing a limiting instruction on the evidence, at

BSC’s request and which BSC drafted. Where admitted evidence “is admissible as to

one party or for one purpose but not admissible as to another party or for another

purpose, the court, upon request, shall restrict the evidence to its proper scope and

instruct the jury accordingly.” Md. Rule 5-105. The instructions to the jury provided:

       [Y]ou may hear during the trial, either testimony or see documents relating
       to Boston Scientific’s accrual of royalties potentially payable to the
       Mirowksi family pending the outcome of the St. Jude Indiana litigation. I
       instruct you that evidence of Boston Scientific’s accrual of potential
       royalties payable to the Mirowski family pending the St. Jude Indiana
       litigation is not to be considered by you an admission of liability by Boston
       Scientific. You must determine, based on all of the evidence whether
       Boston Scientific did or didn’t fail to pay all of the royalties due covered by
       claim four of the 288 patent. In other words, whether or not they did or
       didn’t [b]reach the January 2004 agreement [Royalty Agreement] to pay the
       royalties for 2002 and 2003 based on all the evidence you hear at trial.

BSC contends that this limiting instruction was insufficient because it “cannot cure an

erroneous decision to admit evidence that has no legitimate purpose.” However, the

memorandum had a “legitimate purpose:” the circuit court admitted the memoranda as

parol evidence to clarify what it found to be an ambiguous phrase in the 2004 Royalty

Agreement. See, e.g., Tricat Indus., Inc. v. Harper, 131 Md. App. 89, 107 (2000)

(explaining that “parol evidence is admissible when the written words are sufficiently

ambiguous”) (citation omitted).



                                             23
       We, therefore, will not disturb the jury’s verdict with regard to Count One on the

basis of a “legally erroneous” theory because the evidence was appropriately admitted

and the jury properly considered it to make its determination.22

            b. The circuit court did not commit error by not instructing the jury on
               patent law issues regarding MFV’s second and third arguments for
               Claim One.

       MFV presented two other alternative evidentiary bases for recovering under the

2004 Royalty Agreement. The jury did not need to be instructed on issues of patent law

because the relevant information it needed to make a decision as to the breach of contract

were presented before it.

               i. Circuit court did not err in refusing to construe the term
                  “cardioversion.”

       BSC claims that the circuit court erred in refusing to construe the term

“cardioversion” and instead left it to the jury to determine the meaning. Claim 4 involved

the patented methodology of treating an abnormal heartbeat using “multimode therapy,”

with one mode being “cardioversion.” Thus, whether the ICDs performed

“cardioversion” was significant in whether they were covered by the patented method

and, therefore, whether MFV could collect royalties on their sales. BSC argues that the


       22
          BSC argues that because one of MFV’s arguments in Count One is “legally
erroneous,” the whole verdict must be vacated. BSC supports its assertion by citing
several cases standing for the proposition that if there are multiple potential grounds for a
jury’s verdict and one is legally erroneous, the verdict must be vacated. See Flowers v.
Tandy Corp., 773 F.2d 585, 591 (4th Cir. 1985); Gill v. Rollins Protective Servs. Co., 722
F.2d 55, 59 (4th Cir. 1983); United NY & NJ Sandy Hook Pilots Ass’n v. Halecki, 358
U.S. 613 (1959); Prince George’s Cnty v. Longtin, 419 Md. 450, 470 n.15 (2011).
Because there was no “legally erroneous” ground on which the jury could have made its
determination, we will not vacate its verdict in favor of MFV with regard to Count One.
                                             24
circuit court erred in refusing to re-construe the term and leaving “it to the jury to resolve

any disputes about the meaning of the [] claim’s construction” by the Indiana court.

       In the St. Jude Indiana Litigation, the Indiana district court interpreted

“cardioversion” to mean “the application of non-pacing electrical pulses designed to

stimulate sufficient heart tissue to correct an arrhythmia, with energy levels generally

below those used for defibrillation.” Cardiac Pacemakers, Inc. v. St. Jude Med., Inc.,

381 F.3d 1371, 1374 (Fed. Cir. 2004). During this litigation, MFV and BSC were not

adverse to each other and together supported this definition.23 This definition is what

MFV presented to the jury in circuit court. Now, BSC claims that the term

“cardioversion” required clarification by the circuit court because each side accused the

other of applying the incorrect definition of the term at trial.

       The circuit court appropriately denied BSC’s request for further claim construction

and accepted the Indiana district court’s definition of the term, finding the construction of

the term to be “judicial admissions [by BSC and MFV], binding both clients not only for

[the St. Jude Indiana Litigation] but in other litigation as well.” Campfield v. Crowther,

252 Md. 88, 100 (1969) (“A judicial admission by an attorney in the presence of his

client is admissible in subsequent litigation.”). BSC mistakenly asserts that the circuit

court left the construction of the term to the jury. In its order, the circuit court adopted

the undisputed construction of the Indiana district court, leaving to the jury only the

application of the claim.


       23
       This definition also appears, unchallenged, in the Indiana proceedings between
MFV and BSC in the district court’s recounting of the facts of the case.
                                              25
             ii.    MFV’s argument for recovery based on obtaining potential
injunctions on sales of ICDs is not legally erroneous.

        Next, BSC contends that MFV’s argument that it was entitled to royalties on ICD

sales during 2002-2003 because it could have obtained an injunction on the sales of all

those ICDs is “legally erroneous under applicable patent law.” When used in patent

licenses, the term “covered,” BSC argues, applies only to the product or technology that

actually infringes the claim; the terms “covers” and “infringes” are “synonymous”

according to BSC. In support, BSC provides a list of cases where products were both

covered by and infringed the claims in question. See Hoechst-Rouseel Pharm., Inc. v.

Lehman, 109 F.3d 756, 764 (Fed. Cir 1997) (“Since the registered product would directly

infringe the claims during use, the product is covered by the claims[.]); Mitsubishi Chem.

Corp. v. Barr Labs, Inc., 718 F. Supp. 2d 382, 390 (S.D.N.Y. 2010) (“The defendants

concede that their proposed generic product is covered by and would infringe all four

claims of the ‘052 patent.”); Rambus Inc. v. Hynix Semiconductor Inc., 254 F.R.D. 597,

602 (N.D. Cal. 2008) (“[T]he patentee must show that the marketed product embodies

(that is infringes or is covered by) the patent claim.”). However, BSC misreads these

cases. None stand for the proposition that a product or technology is only covered by a

patent if it infringes the patented method or technology, as BSC suggests. Rather, these

opinions merely include language where a claim was both covered by a patent and

infringed the patent. Notably, the citation to Mitsubishi Chemical Corporation v. Barr

Labs, Inc. references the facts section of the opinion, which states merely the independent




                                            26
agreement of the parties in the case, not a discussion of pertinent law governing patents,

providing no persuasive authority for us.

       Furthermore, looking at the merits of MFV’s argument, we conclude that MFV did

not err in its reasoning that because it legally could have stopped the sale of all ICDs, it

was entitled to royalties on those ICDs. The United States Court of Appeals for the

Federal Circuit, which is the only appellate-level court with the jurisdiction to hear patent

case appeals, has affirmed injunctions against sales of all products where the product’s

label “would inevitably lead consumers to practice the claimed method.” AstraZeneca

LP v. Apotex, Inc., 633 F.3d 1042, 1060 (Fed. Cir. 2010). It has also found liability for

induced infringement when an entity “offers a product with the object of promoting its

use to infringe, as shown by clear expression or other affirmative steps taken to foster

infringement.” DSU Med. Corp. v. JMS Co. Ltd., 471 F.3d 1293, 1305-06 (Fed. Cir.

2006). The sale of a product specifically labeled for use in a patented method constitutes

inducement to infringe that patent, and usually is also contributory infringement. See

AstraZeneca, 633 F.3d at 1060. Under this applicable patent law, because BSC (1) was

designing and manufacturing ICDs to perform cardioversions, (2) instructed its sales

representatives to program ICDs to perform cardioversions, (3) included directions with

each ICD with instructions on how to program the ICD to perform cardioversions, and

(4) admitted that if cardioversions were performed according to the products’ label, the

‘288 patent covered the ICD, the ICDs were covered by the patent and thus the jury’s

award for royalties was appropriate.



                                              27
              iii.   The circuit court did not err by not providing patent law
                     instructions to the jury.

       BSC contends that because “MFV’s second and third theories of liability under

Count One raised a number of complex issues particular to patent law,” the circuit court

should have instructed the jury on the patent law governing these issues. BSC reminds us

in their argument that “[t]he party arguing that an instruction should have been given

bears the burden of proving prejudice and error.” See Farley v. Allstate Ins. Co., 355 Md.

34, 47 (1999).

       However, as the party bearing the burden of proof, BSC merely provides that the

prejudice and error are “self-evident,” with no other explanation or support. We will not

make the argument for BSC. An appellate court is not required to address an argument

on appeal when the appellant has failed to adequately brief his argument. Honeycutt v.

Honeycutt, 150 Md. App. 604, 618 (2003) (citing Md. Rule 8-504(a), requiring that a

brief contain an “[a]rgument in support of the party’s position”); see also Klauenberg v.

State, 355 Md. 528, 552 (1999) (stating that an appellate court need not consider

“arguments not presented in a brief or not presented with particularity”). We fail to see

how the prejudice to BSC is “self-evident,” and because BSC fails to provide any support

to that claim, this Court need not address this issue. See Beck v. Mangels, 100 Md. App.

144, 149 (1994) (refusing to address appellants’ questions where appellants failed to offer

substantial argument).

          c. The circuit court did not err in finding that the overseas sales of the
             ICDs were royalty bearing.



                                            28
         In its final argument, BSC claims that the circuit court erred in deciding that MFV

was entitled to royalties on ICDs sales made abroad during 2002-2003 on top of its sales

within the United States. Pre-trial, MFV argued that sales made abroad were covered by

Claim 4 under 35 U.S.C. § 271(f), at least in the time they were made. Section 271(f)(1)

reads:

         Whoever without authority supplies or causes to be supplied in or from the
         United States all or a substantial portion of the components of a patented
         invention, where such components are uncombined in whole or in part, in
         such manner as to actively induce the combination of such components
         outside of the United States in a manner that would infringe the patent if
         such combination occurred within the United States, shall be liable as an
         infringer.

The parties made the same argument during the St. Jude Indiana Litigation. During that

time period, MFV and BSC were both plaintiffs on the same side, arguing the position

that MFV asserts here. In 2009, however, the Federal Circuit reviewing the St. Jude

Indiana Litigation decided that Section 271(f) does not apply to method or process

patents (specifically Claim 4 of the ‘288 patent). Cardiac Pacemakers, Inc. v. St. Jude

Med., Inc., 576 F.3d 1348, 1365 (Fed. 2009). In other words, the 2009 Federal Circuit

changed the law so that method patents cannot be enforced on overseas sales, which

would have allegedly resulted in lower damages on Count One for MFV.24 The circuit

court, however, relied on state contract law and judicial estoppel to rule on the issue,

instead of patent law. It did not err in doing so.



         24
          MFV attributed $17,134,298 of the approximate $86 million of the total
royalties to overseas sales.
                                              29
       First, the circuit court determined that the law in place at the time the parties

entered the 2004 Royalty Agreement governed royalties of overseas sales for the

pertinent period, 2003-2004. In looking at what law governs in contracts between parties,

we note:

       It is well settled in Indiana that generally, unless the contract provides
       otherwise, all applicable law in force at the time the agreement is made
       impliedly forms a part of the agreement without any statement to that
       effect, but laws enacted subsequent to the execution of the agreement are
       not deemed part of the agreement unless the contractual language clearly
       indicates such to have been the intention of the parties; the parties are
       presumed to have had the law in mind.

Ethyl Corp. v. Forcum-Lannom Associates, Inc., 433 N.E.2d 1214, 1220 (Ind. Ct. App.

1982) (citations omitted); see also Julian v. Christopher, 320 Md. 1, 10 (1990) (refusing

to “rewrite” the contract between the parties because “we should assume” that parties

executing contracts when certain laws govern the subject of their contract “were aware of

[the law at the time] and the implications drawn from the words they used”). Thus, the

2009 holding of the Federal Circuit has no bearing on BSC’s responsibility to pay

royalties for 2002-2003 sales pursuant the 2004 Royalties Agreement.

       Second, the circuit court determined that the doctrine of judicial estoppel

prevented BSC from arguing to the jury that overseas sales were not covered. During the

St. Jude Indiana Litigation, BSC argued that overseas sales were covered. We have

previously identified three factors that inform whether there is judicial estoppel in a

particular case: first, “whether the party’s later position is clearly inconsistent with its

earlier position;” second, “whether the party succeeded in persuading the court in the

earlier matter to accept its position, so that judicial acceptance of the contrary position in

                                               30
the later matter would create the perception that one of the courts had been misled;” and

third, “whether the party seeking to assert the inconsistent position in the later matter

would derive an unfair advantage, or would impose an unfair detriment on the other

party, from being permitted to do so.” Abrams v. Am. Tennis Courts, Inc., 160 Md. App.

213, 225-26 (2004) (citation omitted). While these factors are not “inflexible

prerequisites,” they do provide guidance. Id.

       Applying the Abrams factors to the instant case, we agree with the circuit court

that BSC is barred by judicial estoppel from raising the overseas sales claim. First,

BSC’s current position is “clearly inconsistent” with its position during the St. Jude

Indiana Litigation; BSC has switched sides from arguing that overseas sales were covered

to overseas sales are not covered. Second, BSC did succeed in the St. Jude Indiana

Litigation, at least on the trial level, in persuading the court of its position. Cardiac

Pacemakers, Inc. v. St. Jude Med., Inc., 418 F. Supp. 2d 1021, 1044 (S.D. Ind. 2006)

(“[T]his court cannot conclude as a matter of law that [35 U.S.C.] section 271(f) does not

apply to the method claim at issue here.”). Third, BSC “would derive an unfair

advantage” in switching its position. BSC used the winning argument in the St. Jude

Indiana Litigation, that overseas sales were covered, in its subsequent negotiations with

St. Jude that led to the BSC-St. Jude Settlement later on, which resulted in St. Jude

dropping several pending litigations against BSC. After obtaining that benefit, BSC now

wants to avoid the approximately $17 million in royalties from overseas sales that it

contractually owed to MFV. With all three factors weighing heavily against BSC, we are

persuaded that BSC is judicially estopped from bringing this claim. If not, “BSC would

                                              31
reap the benefit of ‘blowing hot and cold.’ The law does not countenance that result.”

Vogel v. Touhey, 151 Md. App. 682, 722 (2003) (citation omitted).

     IV.    Conclusion

       For the reasons set forth above, we affirm the circuit court in the issues raised by

BSC.

                                          JUDGMENT OF THE CIRCUIT COURT
                                          FOR MONTGOMERY COUNTY
                                          AFFIRMED. COSTS TO BE PAID BY
                                          APPELLANT.




                                             32
