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.
Entries for tag: Expert Discovery
Judge Andrews recently granted a motion in limine precluding a party from presenting expert opinions that were not disclosed until the expert's deposition -- without analyzing the Pennypack factors.
The correct procedure for challenging a late disclosure of theories or evidence has long been a matter of some debate in Delaware. There are cases suggesting that the party seeking to update its contentions should move for leave to do.
More commonly, a party will simply serve updated contentions or expert reports that the opposing party moves to strike. Regardless, the motions are generally analyzed under the demanding Pennypack factors, with the usual result that the …
It can be tough to get late-produced theories or evidence excluded in Delaware, because the Court must apply the permissive Pennypack factors that typically favor admission.
The factors include prejudice, ability to cure any prejudice, disruption of trial, and bad faith/willfulness.
But lately, the Court seems to be granting more motions to strike such theories. Today, Judge Andrews granted a motion to strike a late DOE theory offered for the first time in a reply report.
Judge Andrews Isn't Messing Around
He shot down the Pennypack factors in four short and to-the point paragraphs.
As to the first factor, he found prejudice because admission of a late theory requires …
When it comes time for expert depositions in multi-defendant cases, parties often disagree about how many deposition hours each side (or more specifically, each party) should get.
Judge Stark addressed this last week in H. Lundbeck A/S v. Apotex Inc., C.A. No. 18-088-LPS (D. Del.), where he permitted seven hours of expert deposition time for common issues and four additional hours for each of the nine defendants for defendant-specific issues.
Plaintiffs' depositions of certain of defendants' experts were expanded as well, to between 9 and 14 hours.
Judge Stark explained that the limits
reflect a reasonable and appropriate exercise of the Court's discretion, considering all circumstances, including the fact that this consolidated case is, in reality, …
