Well, this is a new one. Apparently, in BioDelivery Sciences International, Inc. v. Alvogen Pb Research & Development LLC, C.A. No. 18-1395-CFC-CJB (D. Del.), the defendant found out just a little bit too late that their expert had an ethical conflict because he had previously represented the plaintiff.
It's hard to tell exactly what the circumstances were here, because it looks like the relevant motion and all related briefing is fully sealed, with no redacted versions available.
But from what I can see, the plaintiff received a judgment in its favor on some of its claims back in 2022. (D.I. 308). The judgment was appealed, and the Federal Circuit affirmed it in part. (D.I. 337-2).
After that, the plaintiff filed a motion to enforce the judgment, and the defendant opposed, citing a declaration from its expert. (D.I. 354).
Three days after the motion was filed, counsel for the plaintiff contacted the expert to inform him that he had an ethical conflict because he had previously been retained by the plaintiff. (D.I. 360, at 1). Four days after that, they let counsel for the defendant know. Id. Turns out, the expert had been retained regarding the same drug that is at issue in the case.
The defendant then filed a letter (thankfully, this part is public) stating that it had discovered that its expert had an ethical conflict, and asking to withdraw the expert opinion and "strike" the portions of the brief referring to it. (D.I. 361). The letter also attached a proposed order that instead asks the Court to treat the expert opinion as "attorney argument." (D.I. 361-1).
The Court easily granted the request to strike the relevant portions of the brief, although it noted it should have been made by motion, not by letter:
The request should have been made by motion. . . . I will nonetheless grant the request because it is unopposed and because of the unusual(and unfortunate) circumstances that give rise to it. See generally D.I. 361 at 1-2 (noting that [the expert] had previously been retained by Plaintiff . . . regarding Belbuca (the drug at issue in this case), that "[i]t remains unclear whether [the expert] conducted a conflict check" prior to being retained, and that [he] did not disclose to Alvogen his prior representations of BDSl and BDSl's parent).
D.I. 422 at 1-2. More on that below.
As to the proposed order, however, the Court did not like that it didn't track the letter, or that it characterized the expert's opinions as "legal arguments":
Alvogen also asks in the letter that I enter a proposed order submitted as an exhibit to the letter. The proposed order, however, is objectionable for two reasons. For starters, the relief sought in the proposed order does not match the relief sought in the letter. The letter asks that I permit Alvogen to withdraw [the expert's] declaration and that I strike the portions of Alvogen's brief that cite to the declaration. The proposed order, however, provides for additional relief—namely, that I "treat" the "portions" of Alvogen's opposition brief that cite to [the expert's] declaration "as counsel's own legal arguments" and "consider the merits of all such arguments." D.l. 361-1 at 2-3. Nowhere in the letter does Alvogen mention, let alone offer any justification for, this additional relief.
This failure on Alvogen's part is likely because of the second reason the proposed order is objectionable—namely,that the proposed order states something that is not true. In point of fact, the "portions" of Alvogen's opposition brief identified in the proposed order are not legal arguments. If the portions were truly legal arguments, they would have been supported by citations to case law, FDA regulations, or other legal authority. That Alvogen cited only [the expert's] declaration in support of the "portions" in question makes clear that those "portions" are assertions of fact, not assertions of law.
Id. at 2-3. You really do have to be careful with proposed orders.
The Court struck the portions of the brief that "cite or make reference to" the opinion, rather than considering them as attorney argument.
The obvious takeaway is: be sure to confirm that your expert did a conflicts check! Let's all hope we never end up in a similar position.
Side Note: Why Not Just File a Motion?
As the Court noted in its opinion, the District of Delaware local rules require that all requests for relief be made by motion. D. Del. LR 7.1.2(a).
Out-of-town co-counsel often have a weirdly strong preference to make requests of the Court by letter, rather than by a motion. There are a couple of reasons for that, but none of them can hold water in my view:
- "We don't want to file a long brief." A motion can be very short and does not require a brief. The local rules do not require things like a table of contents or table of authorities in a motion—only in a supporting brief, if one is filed. Parties often file short "speaking motions" where the basis for the relief is set forth in the motion itself.
- "We don't want the other side to get a response." If one side going to break the rules and file a letter, the other side will just break the rules in turn, and file a responsive letter—probably one that says this request should have been a motion.
- "We don't want to have to meet and confer under LR 7.1.1." But is breaking LR 7.1.2 (requests must be made by motion) really that much better than breaking LR 7.1.1 (counsel must meet-and-confer prior to a motion)? I don't think so. Either way you will be saddled with a side-show procedural argument and will be reliant on the Court's forgiveness for breaking the rules. And either way, the Court will want you to have met and conferred.
Of course, requests for relief set forth in a letter can often be effective, as shown here. I expect that parties will continue filing letters seeking relief as long as they keep working. But please, before you stick your motion in a letter, think about whether you really want to deal with the question of whether it was procedurally proper.
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