A Blog About Intellectual Property Litigation and the District of Delaware


Entries for search: pennypack

Judge Burke Warns Against Gambling on Self-Help Measures

David M. Fry, Jan. 20, 2021
Motion to Strike Pennypack

Casino
Heather Gill, Unsplash

It's a common dilemma in expert discovery: the other side's expert says something new in an opening report, you move to strike it, and you get a hearing date after the deadline for your rebuttal report. Do you have your expert respond (and weaken your prejudice arguments)? Or do you double down on your motion to strike (and risk losing the ability to respond altogether)?

In D. Del., the second option is a huge gamble. Yes, it's possible to persuade our judges to strike late-disclosed expert opinions (even under the Third Circuit's lenient Pennypack factors). But if you won't get a ruling before your responsive report is due, ignoring the new material can …

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Court Attributes Expert's Knowledge to Party Itself, Strikes Invalidity Arguments

Andrew E. Russell, Dec. 14, 2020
Motion to Strike Pennypack

Stop Sign
Luke van Zyl, Unsplash

In an opinion last Thursday, Judge Andrews struck a defendants' prior art arguments as to two references, after it offered them for the first time in an opening expert report served nearly two years after final infringement contentions.

The Court found that the prior art arguments were intentionally withheld, because the defendant used the same expert as other parties in another case on the same patents, and those parties had asserted invalidity based on the relevant references (through the expert) nine months or more before the expert did so here:

[T]here is no explanation why Defendant did nothing to alert Plaintiff of its new theories in the nine months or more before the expert …
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No expert? No problem. Maybe.

Andrew E. Russell, Sept. 7, 2020
Litigation Pennypack

Empty Chair
Giorgio Trovato, Unsplash

Sometimes people think that they have to offer expert testimony to rebut the other side's expert on every single issue. That's not true, at least when the other side has the burden of proof.

I've represented a defendant in a jury trial representing where we offered no damages expert at all, and it worked out well (under the circumstances—I'm definitely not saying it's a good general strategy). We poked holes in the opposing expert's theories, and the other side had no way to return fire and no reply report in which the fix the issues.

Judge Andrews addressed something like that last week in an opinion on a motion in limine. Defendant had offered expert …

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Excluded, Again

Jeff Castellano, Aug. 25, 2020
Expert Discovery Motion to Strike

Although it requires some reading between the redacted lines, Judge Stark's recent ruling in H. Lundbeck A/S v. Apotex, Inc., C.A. No. 18-88-LPS is worth the effort. It shows that while sometimes exclusion orders leave the door open a crack to introduce the excluded evidence in some other fashion, that is not always the case.

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