Court’s Explanation of Refusal to Strike Expert Reports

JDS Therapeutics, LLC. v. Pfizer al.

Case Number: 1:12-cv-09002-JSR (Dkt. 133)

Judge Rakoff explained his December 16, 2013 order denying defendants’ motion to strike part or all of four expert reports.

First, concerning two expert reports relating to validity, plaintiffs did not amend their responses to contention interrogatories, interrogatories the court said it “reluctantly granted” despite “deep concern, based on years of experience, that such interrogatories generally do little to clarify the issues and instead generate significant conflict during discovery and beyond.” The court said that both parties were at fault, but ultimately concluded that defendants could have solved the problem by raising it sooner, and so refused to strike the reports: “defendants took a calculated risk: they waited until this late stage of litigation to spring their motion to strike, even though they were fully capable of seeking earlier clarification — as they sought in other contexts. As a result, the Court reaffirms its denial of defendants’ motion to strike any portion of the [] rebuttal reports.” 

Second, the court found that plaintiffs’ responses to the contention interrogatories were adequate to place defendants on notice that plaintiffs alleged infringement because of the presence of nicotinic acid instead of just niacinamide (the amine of nicotinic acid), and even if notice had not been provided, “defendants fail to demonstrate that they suffered prejudice;” after all, “defendants [had the] opportunity to depose the specialist who performed the study, and defendants ability to test their own product at any stage before or during this case.”

Finally, with respect to a motion to strike all or part of a damages report, the court noted that plaintiffs’ responses to the contention interrogatories stated that that “they would provide additional information responsive to this interrogatory ‘by way of expert report.’” The court was not convinced that plaintiff had the right to supplement their interrogatory responses in this fashion, but in light of defendants’ failure to object, denied the motion to strike.

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