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Judge Noreika issued an interesting order last week that allows us to pinpoint precisely how much time she requires to consider Daubert motions.

Naturally, we already had some insight into this issue from the Judge's form scheduling orders. For non-ANDA cases (i.e. cases where the parties may file summary judgment motions), Daubert motions are due at the same time as SJ motions -- at least 4 months before the pretrial conference. See Form Scheduling Order [Patent, Non-ANDA], ¶ 8(f)(iii) (D. Del. Apr. 5, 2021) (Noreika, J.).

The form scheduling order for ANDA cases, on the other hand, gives the parties considerably more leeway, simply requiring that any Daubert motion be brought "no later than fourteen (14) days after the close of expert discovery." Form Patent Scheduling Order [ANDA], ¶ 7(f)(iii) (D. Del. Apr. 5, 2021) (Noreika, J.).

Cuing the due date off of the close of discovery, rather than the pretrial conference, can lead to cases where the Court has very little time to consider the motions before ruling. That was the case with the Scheduling order in Ferring Pharms. Inc. v. Fresenius Kabi USA, LLC, C.A. No. 20-431-MN.

In that ANDA case, the initial scheduling order looked like the below:

  • Close of Expert Discovery - November 5, 2021.
  • Daubert Motions - November 19, 2021
  • Pretrial Conference - January 11, 2022

See id. at D.I. 25 (D. Del. June 22, 2020).

Assuming a normal local rules based briefing schedule for the Daubert motions, this left Judge Noreika only 31 days from the reply brief to the pretrial conference. Nevertheless, Judge Noreika so-ordered this proposed schedule. Id.

Although the schedule was modified by stipulation several times, this 31 day window from Daubert reply to pretrial conference remained constant until the parties attempted to move it last week to the following:

  • Close of Expert Discovery - November 19, 2021
  • Daubert Motions - December 1, 2021
  • Pretrial Conference - January 11, 2021

See id. at D.I. 150 (D. Del. July 1, 2021).

This request -- which would have brought the time from reply to pretrial conference down to just 20 days --proved to be a bridge too far. Judge Noreika denied the requested extension in a short order, noting that the proposed extension "does not allow the Court enough time between the completion of Daubert briefing and the pretrial conference." Id. at D.I. 151 (D. Del. July 2, 2021)

So there you go -- 20 days from Daubert reply to PTC is too short, and 31 days is long enough (or at least it was in this case).

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