In a recent Order, Judge Richard G. Andrews granted in part defendants’ motion to preclude plaintiffs’ expert. Impax Laboratories Inc. v. Lannett Holdings Inc., C.A. No. 14-984-RGA (D. Del. Sept. 6, 2016) (consolidated). Judge Andrews explained that the expert at issue “is a doctor and a very well-qualified migraine expert. He is not an economist, an accountant, a statistician, or a businessman.” Id. at 2. Judge Andrews found that the expert is “qualified to have an opinion on nexus [related to commercial success], but there is no evidence of any academic or experiential basis that would permit him to express quantitative business opinions.” Id. Judge Andrews therefore concluded that the expert may not testify “to his opinions on commercial success.” Id.
Judge Andrews otherwise denied defendants’ motion to preclude, explaining:
While I acknowledge the “gate-keeper” function of a federal trial judge, it is not so important that it be done pretrial when the trial is a bench trial. Live testimony and cross-examination are much more likely to result in a correct decision from me about whether the experts are giving appropriate scientific testimony. Thus, while I am denying most of the motion for now, Defendants may make (and, indeed, in order to preserve the issue, must make) objections at appropriate times. I expect Plaintiffs will lay appropriate foundation for [their expert] as part of their case. Failure to make a timely appropriate objection will result in the objection being waived. The 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 1 (citations omitted).