A Blog About Intellectual Property Litigation and the District of Delaware

In VIIV Healthcare Company et al v. Gilead Sciences, Inc., Judge Burke issued a rare oral order striking a new expert opinion offered for the first time at deposition.

The expert had opined in his reports that a prior art study the other side relied upon was flawed for various reasons.

At his deposition, however, he repeatedly volunteered "new information" that he had recently "uncovered"—that the author of the prior art reference had purportedly been "recycling" old data for years, and passing it off as contemporaneous research.

Each time he offered these new opinions, often out of the blue, taking counsel immediately objected and moved to strike his answers as non-responsive or as exceeding the scope of his report.

After the depo, counsel brought a discovery dispute to strike the "new information."

Pennypack Can Make Motions to Strike Tough to Win

A motion to strike under these circumstances can sometimes seem like a long shot, it normally requires weighing the Pennypack factors. These factors most often weigh against the "extreme sanction of precluding critical evidence," because the Court must consider the importance of the excluded evidence and the potential to cure any prejudice by other means.

When the Pennypack factors come up, it's most common to see a smaller sanction such as additional deposition time, or the opportunity to submit a rebuttal report—or nothing at all.

The Court Struck the New Opinion Anyway

Here, the opposing party made raised Pennypack in its letter to the Court, but didn't address the individual factors or argue that the testimony should be permitted even if it was new. Instead, they argued that the "new" opinions were not new, and were instead merely "consistent and appropriate elaborations of prior opinions and statements."

Judge Burke disagreed:

The Court cannot agree with Plaintiffs. Not only did Dr. Engelman confirm in his deposition that these were "new" opinions base don information he had only recently "uncovered," but the Court cannot find similar criticism in Dr. Engelman's opening or reply expert reports.

He also noted that the opposing party had failed to argue that the testimony should be permitted even if new:

Plaintiffs do not argue that even if this opinion was untimely disclosed, Dr. Engelman should be permitted to espouse it. Instead, they argue only that these statements were not new opinions but instead statements that are "'consistent and appropriate elaborations of prior opinions and statements.'"

Thus, Judge Burke struck the opinion after finding no mention of it in the expert's reports.

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