Remember that this Friday, April 18, is a court holiday. For Delaware counsel in particular, it's worth considering whether that may impact any case deadlines.
Given the upcoming holiday, and that there is typically lighter-than-usual activity in those weeks, we're taking this week off from the blog. See you next week!
Exclusion of damages opinions are a frequent topic for our blog. Daubert motions to exclude expert opinions tend to have a higher success rate than other types of Daubert motions, and it's worthwhile to have a good understanding of where the pitfalls lie, whether you are helping an expert draft a damages opinion or considering challenging one.
Yesterday, the Court granted a Daubert motion to exclude a damages opinion in a patent case. The expert relied on prior licenses to other patents from the same inventor to support his reasonable royalty opinion for the patents-in-suit. That requires showing that the prior …
Anyone who's ever heard a judge speak, be it at the Bench and Bar conference, a luncheon, or in the drive-thru of your local Arbys, will have heard them say that a shorter brief is often better.
Law being what it is, however, this advice isn't often taken. Looking at the last 7 motions to dismiss filed in the district (look, I got bored)—with the usual 20-page limit—the average length was about 18 pages.
And so, on this slow news day, I bring you what may be the shortest successful motion I have ever seen, so that we may all be inspired to similar brevity:
Dear Judge Andrews:
We write on behalf of MSN to respectfully request an emergency teleconference and a temporary restraining order restraining Novartis from forwarding today's final judgment to the FDA. MSN' s motion to delist the '659 patent is scheduled for oral argument on April 29, 2025, and if the Court grants the motion, then Novartis' loses its pediatric exclusivity and there would be no basis to re-set MSN's ANDA's FDA approval date. If Novartis were to forward the order to the FDA, FDA re -sets MSN's ANDA's approval date, and MSN is successful on its motion, then MSN would be irreparably harmed because it would not be able to launch its ANDA product even though Novartis would lose its pediatric exclusivity. In that regard, there is no harm to Novartis by granting MSN's requested TRO because the final judgment enjoins MSN from launching its product.
We respectfully request interim relief at the Court's earliest convenience.
Novartis Pharmaceuticals Corporation v. Dr. Reddy's Laboratories, Inc., C.A. No. 19-2053-RGA. D.I. 518 (D. Del. Apr. 1, 2025).
That little motion—which was actually emailed to chambers—won the defendant a short-lived TRO that very day:
MSN's request for temporary emergency relief is granted. Novartis and its agents are ORDERED to maintain the status quo. That is, Novartis is directed not to provide the final judgment entered today to the FDA. I do not see any harm to Novartis from brief delay, because MSN cannot launch. But Novartis can certainly respond to MSN's letter, and I will reconsider the issue after receiving any response from Novartis.
Id., D.I. 509.
As it happened, the whole thing ...
A couple of weeks ago, in an opinion on a motion to dismiss, Judge Andrews mentioned the the defendant had filed a "speaking motion":
Curt and U-Haul now move to dismiss for failure to state a claim under Rule 12(b)(6) solely on the grounds that the statutes of limitations for the negligence and breach of implied warranties claims have run. . . . Curt argues that, under Delaware law, both claims are time-barred; its speaking motion makes no reference at all to Massachusetts law. (See D.I. 65).
Street Retail LLC v. Curt Mfg., LLC, C.A. No. 24-731-RGA, 2025 U.S. Dist. LEXIS 54442, at *2 (D. Del. Mar. 24, 2025).
The document he referred to at D.I. 65, …
(Eds. note—my therapist (an avid reader of the blog) tells me that the title of this post is inaccurate and indicative of an "unhelpful" worldview.)
(Second Eds. Note—My therapist has asked that I not quote her in the blog. Apparently it "demeans us both.")
What can you do.
Today's tale is of a stipulation, born of hope and an honest desire to streamline a case, that ended in acrimony and pain.
The parties in Roger P. Jackson, M.D. v. NuVasive, Inc., C.A. No. 21-53-RGA, D.I. 431 (D. Del. Feb 21, 2025), had long ago stipulated to several representative products for the purposes of infringement and invalidity across an otherwise vast swath of accused …
Back in 2021, Chief Judge Connolly instituted a new ranking procedure for summary judgment motions in his cases, in which parties rank their SJ motions and, if the top-ranked motion is denied, all lower-ranked motions are denied as well. The Court later expanded that procedure to encompass Daubert motions as well. Judge Williams has adopted it (for SJ motions only), and Judge Noreika has experimented with it—although at least one other judge has declined to adopt it.
To put the procedures in context, judges on the Court have long applied various measures to control the workload generated by summary judgment motions. Former Chief Judge Sleet, for example, required parties to request leave before filing summary judgment …
Most practicing Delaware attorneys can probably rattle off page limit requirements in their sleep, given how frequently we hear this question from out-of-town counsel.
Limits vary case-to-case based on differences scheduling orders and other circumstances, but below we've summarized some of the default limits set by the District of Delaware local rules, standing orders, and our judges' form scheduling orders.
[The irony of subjecting readers to a long post on word limits is not lost on me.]
Under LR 7.1.3, most motions are limited to:
Everything must be double-spaced and in at least 12-point …
You are all of course familiar with the classic tale of chicken little. You may be less familiar with the plot of if the ill-fated Disney move of the same name. They both start the same, chicken sleeping under a tree has something fall on him, tells everyone the sky is falling and starts a panic.
Here the stories diverge. In the folktale, chicken little and his panicked friends meet a while fox, who tricks them into taking shelter in his cave, and then eats them. You can see the lesson.
In the film, chicken little is scorned, but later redeems himself by helping the local baseball team win the pennant (?). Afterwards, he is again hit by a piece of the sky, which turns out to be high tech camouflage used to hide alien spaceships in low orbit. The ships descend upon the hapless town, and the whole thing turns out to be a big misunderstanding. The lesson is somewhat less clear. This film made 300 million dollars.
Those of you who read Law360 (who somehow scooped me on this, but whose article does not recount the plot of a 20-year-old children's movie in unnecessary detail) will have guessed that this is all leading up to Judge Andrews' Oral Order yesterday in Novartis Pharmaceuticals Corporation v. Dr. Reddy's Laboratories, Inc., C.A. No. 19-2053-RGA. D.I. 512 (D. Del. Apr. 2, 2025):
Yesterday, MSN said the sky was falling and it needed emergency relief. I granted it. Today, MSN has filed an emergency motion requesting additional relief for essentially the same falling sky. I decline to enter any additional relief at this time or to consider the motion on an emergency basis.
For those wondering about the context here, the Federal Circuit just recently issued its mandate in the case ruling that the asserted patent was valid and infringed. Judge Andrews then promptly entered a final judgment, which included an order setting the effective date for approval of MSN's ANDA until after the end of Novartis' pediatric exclusivity period.
It's unclear from the docket exactly what happened next, but it appears that MSN emailed chambers ...
We've written before about how delay can kill your discovery motions. We got another straightforward example on Monday in Novartis Pharmaceuticals Corporation v. HEC Pharm Co., Ltd., C.A. No. 20-133, D.I. 340 (D. Del. Mar 31, 2025).
There, the defendants sought depositions of two foreign inventors through the Hague convention. The defendants have known the relevance of the inventors' knowledge since at least July, 2022, but only moved for issuance of letters rogatory in December 2024.
The case was stayed for a portion of that time, but in total, the Court found that there was no good reason that it should have taken so long to seek this discovery:
During the teleconference, Defendants' …
I will speak a truth that many of you have suspected. Sometimes we (well, I) pick a case just because it has a fun name. My original post today was about HQ Specialty Pharma Corp. v. Fresenius Kabi USA, LLC, C.A. No. 21-1714-MN. Honestly the case was too fact intensive to easily convert to a general interest blog post. On the other hand, it contained a great deal of discussion of the testimony of a New Jersey Pharmaceutical executive named Mr. Pizza.
The whole thing ended up being just jokes and out of context slices ("Mr. Kelly . . . doubted whether Mr. Pizza 'had any knowledge of the [prior art] references'") …
