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Judge Robinson reaffirms decision to dismiss defenses not adequately pursued during discovery

Judge Sue L. Robinson recently denied defendant Gevo, Inc.’s motion for reconsideration of the court’s May 19, 2014 order finding that Gevo did not adequately pursue its defenses of lack of enablement and written description during discovery and, therefore, could not present those defenses at trial.  Butamax™ Advanced Biofuels, LLC v. Gevo, Inc, et al., C.A. No. 11-54-SLR (D. Del. June 27, 2014).  Gevo now asserted that it could present the defenses without expert testimony, but the Court was not persuaded.  Even though Gevo disclosed the defenses in interrogatory responses, “Gevo did not substantially pursue these defenses through the course of discovery and Butamax was not given occasion to thoroughly vet such defenses in preparation for trial.  Moreover, until the motion [for reconsideration], Gevo did not provide the court with an indication that it would be appropriate to go forward with such defenses without expert testimony.”  Id. at 2.


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