Judge Sue L. Robinson recently issued a Memorandum Order in a multi-district litigation ordering plaintiffs to supplement responses to defendants’ damages contention interrogatory. In re: Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litigation, C.A. No. 09-MD-2118-SLR (D. Del. Oct. 22, 2013). This litigation involved unique circumstances in that plaintiffs were “pursuing an infringement action in an ANDA case after judgment of infringement and validity ha[d] been entered, seeking damages relating to defendants’ at-risk launch[.]” Id. at 3 n.3. Defendants served an interrogatory requesting plaintiffs’ contentions regarding plaintiffs’ claim of damages related to defendants’ at-risk launch of a generic product. Id. at 1-2. Plaintiffs initially objected to providing any response stating that damages discovery was in its early stages, that damages was the subject of expert discovery, and that plaintiffs need to view defendants’ sales data before responding. Id. at 2. Two months before the close of fact discovery, Plaintiffs supplemented their response by identifying “hundreds of pages of documents from which defendants could ‘derive the information requested by’ the interrogatory.” Id.
Judge Robinson found Plaintiffs’ supplementation insufficient:
I recognize that the identification of documents in lieu of a substantive response to an interrogatory is generally appropriate. I disagree that it is an appropriate response to a contention interrogatory, however, unless such documents specifically identify the contention in the first instance (unlikely) or provide specific data supporting the contention that has already been described. In this case, given that plaintiffs have yet to articulate their contentions with any particularity, I find it hard to believe that these documents are particularly helpful.
Id. Furthermore, Judge Robinson held that although the calculation of damages is the proper subject of an expert opinion, the facts on which an expert relies are properly the subject of fact discovery. Id. at 2-3. Therefore, “parties are required to disclose such facts before the facts are massaged and manipulated by their expert witnesses.” Id. at 3.