Following the pretrial conference in Sunovion Pharmaceuticals, Inc. v. Dey Pharma., L.P., et al., C.A. No. 06-113-LPS, Judge Stark recently ruled on a couple of issues relating to expert testimony, including granting in part defendants’ motion for reconsideration of the Court’s prior ruling striking defendants’ expert report in its entirety as untimely. Id. at 1. In their motion for reconsideration, defendants argued that the Court had, in its prior ruling, “ignored the proper burden-shifting framework for proving anticipation” and erred in excluding their expert’s report as untimely, “resulting in manifest injustice.” Id. at 1. In addtion, defendants argued that the entirety of their expert’s report was timely and should not have been stricken by the Court, because, among other things, it appropriately responded to assertions made by plaintiff’s expert in his report. Id. at 2-3. The Court agreed in part, ruling that defendants’ expert report would not be stricken in its entirety, and that their expert would be permitted to testify at trial consistent with a certain, non-stricken portion of his report. Id. at 3. The Court noted that the non-stricken portion of the report from which testimony at trial would be permitted concerned an issue that defendants were not obligated to anticipate would be put in dispute or otherwise were not required to address in their opening report. Id. at 3. The Court made clear, however, that those portions of defendants’ expert report that were not “timely disclosed in the opening round of expert reports” and that “did not require advance knowledge of [plaintiff’s expert’s] report” would remain stricken. Id. at 3. In addition to ruling on defendants’ motion for reconsideration, the Court reaffirmed that “disputes as to whether specific expert testimony is improper as beyond the scope of prior disclosures [would] have to await trial and, likely, post-trial motions.” Id. at 4. The Court cautioned that “where an expert’s trial testimony was not adequately disclosed in an expert’s report, a new trial may be warranted.” Id. at 5 (citation omitted). This practice is consistent with how Judge Stark has generally handled beyond the scope of expert report objections raised at trial in previous cases.
Sunovion Pharmaceuticals, Inc. v. Dey Pharma., L.P., et al., C.A. No. 06-113-LPS
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