A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: COVID-19

Masks
Afif Kusuma, Unsplash

Effective today, the District of Delaware lifted its mask mandate for public areas:

NOW THEREFORE, it is HEREBY ORDERED that:
1. Effective immediately, masking in public areas of the Court (lobby, corridors, elevators, restrooms, etc.) is no longer required. People may choose to wear a face mask at their discretion. Prior standing orders of the Court that imposed mask requirements are VACATED to the extent, and only to the extent, such orders imposed mask requirements.
2. Judges retain the discretion to impose mask requirements in their courtrooms as they see fit.

Delaware state courts are likewise ending their mask mandate, starting on Wednesday of this week.

In a message to the bar, Delaware Supreme Court Chief …

COVID-19
Fusion Medical Animation, Unsplash

Not all attorneys love remote depositions, even if they are much more convenient and practical in many cases (especially for foreign witnesses). The parties in Supernus Pharmaceuticals, Inc. v. Lupin Limited, C.A. No. 21-1293-MN (D. Del.), an ANDA case, brought two disputes before Judge Noreika about remote depositions:

  1. Whether all parties should be required to make all witnesses available live, instead of via remote deposition; and
  2. Whether all parties, including a defendant who brought counterclaims, should be required to bring their witnesses to the United States for deposition without the other parties having to engage in Hague Convention procedures.

Plaintiff sought to force live, in-person depositions of all witnesses in the …

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

Today, visiting Judge Wolson issued an opinion and order declining to exclude jurors without up-to-date COVID-19 vaccines. The government had requested to exclude those jurors to prevent trial disruptions due to COVID-19.

The opinion was issued in a criminal case, but the language would seem to apply to civil cases as well; the denial was based largely on the difficulty of assembling jury pool in Delaware who are current on their vaccines:

A vaccination requirement along the lines the Government proposes could hamper the Court’s ability to assemble a jury. Current statistics suggest that only 34% of Delaware residents over the age of 18 have received booster shots. 1 That includes 65% of those who are over the age of 65, many of whom are not part of the jury pool because of their age. The result of excluding from the jury pool a large number of people with a high vaccination rate will be to lower the rate of people over the age of 18 in the remaining pool. There could be additional members of the jury pool who are eligible because they received their vaccinations recently. But in any event, the numbers suggest that a vaccine requirement along the lines the Government proposes would exclude nearly 2/3 of potential jurors from the jury pool.

The Court also noted that jury service is an important right ...

Masks
Isaac Quesada, Unsplash

February Jury Trials

After completing all planned December jury trials uninterrupted by COVID-19, the January docket became lighter after the Court continued several trial dates to later this year due to COVID-19 concerns. One of these continued trials, a patent case, was rescheduled to February; the Court also has three other jury trials on the calendar for next month.

In December, the Court reauthorized the use of video and telephone conferencing pursuant to the CARES Act. Relatedly, Governor Carney reinstituted a mask mandate, requiring individuals in Delaware to wear masks while in public spaces, with select exceptions.

Review of December Jury Trials

In our November update, we identified five upcoming December jury trials. Three proceeded as …

Traffic Congestion
Randy Lisciarelli, Unsplash

It's not all that common for judges in the District of Delaware to deny requests to reschedule hearings. But last week we saw two requests denied. And, in both instances, the Court suggested that the party requesting cancellation should just have another attorney prepare for argument rather than rescheduling.

In one instance, Judge Andrews denied a request to reschedule a Markman hearing, stating that:

ORAL ORDER: The request to change the date of the Markman . . . is DENIED. Plaintiff has at least three non-Delaware lawyers. Simply because one of them has a trial scheduled on December 9th is not a reason to change the date of the Markman. There is plenty of time …

This year's November begins on a Monday.
Theodorus van Hoytema

Remaining October Jury Trials

  • 10/25/2021: Boston Scientific Corp. v. Nevro Corp., C.A. 18-644-CFC-CJB (D. Del.): This patent jury trial is calendared to start on October 25 before Judge Connolly.
  • 10/25/2021: CareDx, Inc. v. Natera, Inc., C.A. 19-662-CFC-CJB (D. Del.): The parties in this trademark case will begin jury trial before Judge Connolly on October 25.

Upcoming November Jury Trials

One patent case has a long-standing trial date that appears intact, but another patent case appears close to settling.

  • 11/01/2021: Novel Drug solutions, LLC v. Harrow Health, Inc., C.A. 18-539-MN (D. Del.): Defendant proposed rescheduling the pretrial conference for an earlier date, to which the Plaintiff agreed (D.I. 368), but Judge Noreika declined the rescheduling. D.I. 369. This contract case is set to proceed for five days on November 1.
  • 11/01/2021: Shure Incorporated v. Clearone, Inc., C.A. 19-1343-RGA-CJB (D. Del.): Judge Andrews has resolved multiple merits issues (D.I. 571; D.I. 619; D.I. 621) after adopting the Magistrate Judge’s recommendations to deny most of the parties' dispositive motions. The case still appears on track to proceed to trial. ...

Upcoming October Jury Trials

Of the six jury trials planned for October, four remain on the schedule as of now, including one patent and one trademark action. One patent jury trial was postponed for a second time this month due to the COVID-19 travel ban.

  • 10/12/2021: USA v. Crocker, C.A. 17-10-LPS (D. Del.): This criminal case was originally scheduled for a jury trial before Judge Stark on October 5, but was postponed at the last minute, likely due to a change in counsel. The trial is now set for October 12.
  • 10/18/2021: Parkell v. Frederick, C.A. 15-718-SB (D. Del.): The parties in this prisoner civil rights case agreed to jury trial before …

Autumn trials are adding up
Kelly Sikkema, Unsplash

The District of Delaware has many more jury trials scheduled in the next two months than it has in recent months, and several of the upcoming trials were originally postponed for COVID-19 reasons. The September calendar looks particularly busy at the moment, but several case dockets indicate steps toward resolving before trial, suggesting that several of these trials may not be on the calendar much longer.

Remaining August Jury Trials

District of Delaware continues to permit multiple simultaneous jury trials, as evidenced by the three trials to begin on the same day this month:

  • 8/16/2021: McClanahan v. Priority 1 Air Rescue Operations Arizona, LP., et al., C.A. 18-1237-CFC-SRF (D. Del.): …

As jury trials re-start in this District and elsewhere, litigants may wonder whether and how to help the jury understand the impact of the pandemic on the court and, more specifically, the proceedings they are about to witness. In at least one case in this District, competing jury instructions touching on those topics were proposed by the parties just prior to the start of a jury trial last month. In that case—In re Chanbond, LLC Patent Litigation, C.A. 15-842-RGA—the parties took slightly different approaches, although they seemed to agree that the jury should be instructed not to read anything into the precautionary measures taken by the Court and the parties. ...