Chief Judge Stark Rules on Motions in Limine and Other Pretrial Matters

May 31, 2017

Publication| Intellectual Property

In Cosmo Techs. Ltd. v. Actavis Labs. FL, Inc., C.A. No. 15-164-LPS (D. Del. May 4, 2017), Chief Judge Stark ruled on various motions in limine and other pretrial matters in advance of a bench trial. Chief Judge Stark denied the three pending motions in limine. First, Chief Judge Stark denied the plaintiffs’ motion to preclude an expert from testifying in light of conditions agreed upon by the parties that he would testify only as to certain topics and only if plaintiffs challenged those topics. Further, were the expert to be called at trial, Alvogen Pine Brook, LLC agreed to make him available for a deposition. Second, the Court denied the defendants’ motion in limine to preclude the plaintiffs from offering any evidence about secondary considerations. Chief Judge Stark held that “Plaintiffs may ultimately fail to meet their burden to prove a nexus but their showing to date is not so deficient as to warrant depriving them of the opportunity to attempt to prove their case at trial.” Third, the Court denied the defendants’ motion in limine to preclude the plaintiffs from offering portions of the plaintiffs’ rebuttal expert report as an exhibit at trial. The Court found that the residual hearsay exception applied because the expert was in an accident and not available for a deposition or to attend trial. The portions of the expert’s report at issue concerned his personal observations about studies he completed in the 1990s. The Court found “there [wa]s sufficient trustworthiness to admit the evidence and give it whatever weight it deserve[d].”

Finally, Chief Judge Stark resolved the parties’ disputes over the timing of trial disclosures in the plaintiffs’ favor by requiring identification of trial exhibits of witnesses by 6 p.m. one calendar day before the direct examination, with objections lodged no later than 8 p.m. the same day. The Court required the same schedule for the exchange of opening demonstratives.

Key Points: Chief Judge Stark will not often exclude evidence prior to bench trials so as to ensure parties have the opportunity to present their cases in full.

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