Prejudice Is Key in Judge Andrews’ Decisions on Motions in Limine

January 5, 2016

Publication| Intellectual Property

In Reckitt Benckiser Pharmaceuticals, Inc., et al. v. Watson Laboratories, Inc. et al., C.A. No. 13-1674-RGA (Cons.) (D. Del. Nov. 25, 2015), Judge Andrews denied a motion in limine by Par Pharmaceutical, Inc. (“Par”) to preclude plaintiffs’ expert testimony on the doctrine of equivalents, which was raised in plaintiffs’ opening expert report in a one-sentence conclusory footnote. In deciding the motion, Judge Andrews considered the prejudice to Par that arose from the opinions in the expert’s reply report. Because Par’s trial was set to occur on December 17, 2015, leaving approximately three weeks from the date of the teleconference, Judge Andrews decided to allow plaintiffs’ expert to testify on the doctrine of equivalents and gave Par the opportunity to depose the expert for up to two hours on the subject, with expenses in connection with the deposition paid by plaintiffs. A month earlier, at a pretrial conference on October 29, 2015, Judge Andrews had granted the same motion in limine to preclude plaintiffs’ doctrine of equivalents claim against Watson Laboratories, Inc. (“Watson”). In that instance, Watson’s infringement trial was set to take place on November 3, 2015, just five days after the pretrial conference. Judge Andrews found that plaintiffs had made a deliberate choice not to front-load the doctrine of equivalents argument, which caused a prejudice to Watson that could not be overcome under the schedule.

Analysis: Judge Andrews continues to take a practical approach to motions in limine, focusing on the prejudice to the parties.

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