In W.L. Gore & Associates, Inc. v. C.R. Bard, Inc., et al., C.A. No. 11-515-LPS (D. Del. Feb. 8, 2017), Chief Judge Leonard P. Stark issued decisions on various motions in limine prior to the parties’ upcoming pretrial conference.
Regarding Plaintiff’s motion to exclude “evidence and argument relating to discovery disputes,” the Court granted the motion in part, explaining that “[i]t would be improper, irrelevant, unfairly prejudicial, and confusing to the jury for the parties to refer to or re-fight discovery disputes at trial. Any minimal probative value there may be would be substantially outweighed by the countervailing concerns of Federal Rule of Evidence 403.” Id. at 1. However, “where relevant,” the Court would permit the parties to “make reference to the timing with which an expert was provided with particular evidence – and how that evidence did (or did not) impact the expert’s analysis and opinion- but without stating or suggesting to the jury that such production was late, untimely, or in any manner improper.” Id. The Court denied Plaintiff’s motion to preclude arguments purportedly contrary to the Court’s claim construction because it was not persuaded that certain slides to be used in Defendants’ opening statement were contrary to the Court’s claim construction. Id. at 2.
As for Defendants’ motions in limine, the Court first granted their motion to exclude evidence or argument relating to a certain product of Defendants not marketed in the U.S during the term of the patent-in-suit, explaining that “Plaintiff’s allegations as to the ‘apparent infringement’ of the patent-in-suit by these stent grafts are untimely and unsupported by evidence in the record. Permitting Plaintiff to do as it proposes would be unfairly prejudicial to Defendants – who have had no incentive or opportunity in this action to develop non-infringement evidence relating to these products – and confusing to the jury, concerns that substantially outweigh whatever minimal probative value this evidence might have.” Id. But the Court denied Defendants’ motion to exclude Defendants’ license agreements resulting from settlement, as their concerns could be adequately addressed through cross-examination. Id. at 3.
While the Court reserved decision on a number of disputes within the parties’ pre-trial order, the Court did rule that “specific exhibits to be used for cross-examination need not be disclosed the day before a witness is expected to testify.” Id. at 3.