Judge Andrews Grants in Part and Denies in Part Motion to Preclude Expert Testimony at ANDA Bench Trial
October 5, 2016
Publication| Intellectual Property
In Impax Laboratories Inc. v. Lannett Holdings Inc., C.A. No. 14-984-RGA (D. Del. Sept. 6, 2016), Judge Andrews ruled on Lannett Holdings Inc.’s motion to preclude Impax Laboratories Inc.’s expert, Dr. Rapoport, from testifying at trial. Lannett moved to exclude Dr. Rapoport’s expert testimony on secondary considerations on five grounds: (1) Dr. Rapoport was unqualified to render the proffered opinions; (2) his opinions on commercial success lacked reliability and fit; (3) his opinions on the failure of others were unreliable because they were neither based on sufficient facts or data nor the product of reliable principles and methods; (4) his opinions on teaching lacked reliability and fit; and (5) his opinions on licensing by others lacked reliability.
Shortly after briefing closed on Lannett’s motion, Judge Andrews issued his opinion largely denying the motion. He began with the explanation that, while the judge acts as a gatekeeper, “it is not so important that it be done pretrial when the trial is a bench trial. Live testimony and cross-examination are much more likely to result in a correct decision from [the judge] about whether the experts are giving appropriate scientific testimony.” Judge Andrews went on to remind Lannett of its ability to renew its objections at trial. Judge Andrews did, however, exclude the opinions on commercial success—explaining that Dr. Rapoport was a well-qualified migraine expert but “not an economist, an accountant, a statistician, or a businessman.” Thus, he was not qualified to “testify to his opinions on commercial success.”
Key Points: This opinion highlights a general reluctance to exclude expert testimony prior to bench trials, opting instead to hear the evidence at trial.