Judge Richard G. Andrews recently denied defendant Par Pharmaceutical’s motion to preclude the testimony of Plaintiff’s expert. Novartis Pharms. Corp., et al. v. Actavis South Atlantic LLC, et al., C.A. No. 11-1077-RGA (D. Del. Aug. 16, 2013). Par raised three issues with the expert’s testimony: “(1) the ‘forced degradation’ or ‘stress’ testing; (2) whether acetaldehyde or anything else is an antioxidant; and (3) why [the expert did] not address, or did not perform, other techniques.” Id. at 1. Judge Andrews determined that the second and third issues were not appropriate under Daubert. Regarding the first issue, Judge Andrews noted that the Court’s pre-trial “gate-keeper” function is not as important for a bench trial, and so, live testimony and cross-examination would more likely lead to a correct decision about whether the expert’s testimony is appropriate under Daubert. Id. Judge Andrews denied Par’s motion, instructing Par to preserve the objection at trial by making an objection during the expert’s testimony. Judge Andrews further instructed that: “Failure to [object] at the appropriate time will result in the objection being waived”; that “[t]he Court will consider granting a continuing objection”; and that [t]he Court will only consider evidence actually adduced at trial (whether through cross-examination or testimony from other witnesses) in ruling on any renewed motion.” Id. at 2.
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