Richards Layton & Finger
 

Chief Judge Stark Denies Defendants' Motion to Strike

October 12, 2017

In Cosmo Technologies Limited v. Lupin Ltd., C.A. No. 15-669-LPS (D. Del. Sept. 14, 2017), Chief Judge Stark denied the defendants’ motion to strike portions of the plaintiffs’ expert reports. The defendants argued that they were not on notice of the information provided in the expert reports, including the expert’s visual observations, and that the expert reports went beyond the plaintiffs’ initial contentions. The Court disagreed, stating that the expert’s visual examination did not constitute “new infringement contentions,” but rather constituted additional evidence that supported the plaintiffs’ infringement theory.

Key Point: The Court held that it was reasonable for the plaintiffs to include expert testimony based on visual observation because the Court previously held in another case that the lack of this type of evidence resulted in the plaintiffs’ failure to prove infringement. Also, experts will be permitted some leniency to address issues in their reports not fully explained in the initial contentions.