Jako v. Pilling Co.

848 F.2d 318 (1st Cir. 1988)

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Nature of the Case

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Facts

P is a physician and professor of otolaryngology. P entered into an informal collaboration relationship with appellee D, a manufacturer of specialized medical equipment. P made recommendations regarding the design of equipment used in microsurgery of the larynx, mainly laryngoscopes. From 1963 to the mid-to-late 1970s, most of D's laryngoscopes, as well as other instruments used in the course of larynx-microsurgery, were developed substantially according to the suggestions of P. Following industry practice, the instruments bore the name of the physician who suggested the modification. P did not patent any of the suggestions. P never sought compensation for his services before 1984. D has never compensated persons for the use of their names or ideas in relation to product development unless the idea has been patented. P sent a letter in December 1984 demanding a one percent royalty payment for all products bearing his name sold within the prior fifteen years, and a three percent royalty payment on all future sales of similar products. D agreed to negotiate compensation for future sales. D gave P $5,000 as a show of good faith. The check had written on its face 'Advance on Future Arrangements.' An agreement never materialized. After nine months of negotiating, D announced it was not going to make a deal. P sued D for 1, breach of contract; count 2, restitution, unjust enrichment; count 3, tort of civil conspiracy; count 4, malicious interference with a contractual right; count 5, bad faith termination of an employment contract; count 6, violation of Mass. Gen. Laws Ann. ch. 12, §§ 11 H, I; count 7, intentional infliction of emotional distress. Both sides stipulated to the dismissal of counts three through seven, with prejudice. D moved for summary judgment on counts one and two. The court granted the motion. P appealed.