Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:04-cv-00940-JJF Document 76 Filed 08/O4/2006 Page1 0f 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
THE PROCTOR & GAMBLE COMPANY, :
Plaintiff, ;
v. ;
z Civil Action No. 04-940-JJF
TEVA PHARMACEUTICALS USA, :
INC . , :
Defendant. :
MEMORANDUM ORDER
Pending before the Court is The Proctor & Gamble Company’s
Motion In Limine To Strike The “Expert Report of Jesse David,
Ph.D." (D.I. 66). For the reasons discussed, the Motion will be
granted.
I. BACKGROUND
On June I9, 2006, Plaintiff filed its Motion In Limine,
contending that Dr. Jesse David’s Expert Report for Defendant
should be excluded because it is untimely and inadmissible under
the Federal Rules of Evidence. (D.I. 66). Defendant filed its
answering brief on July 6, 2006, contending that the untimely
filing did not prejudice Plaintiff and that the Report was
admissible. (D.I. 68). Defendant asserts that Dr. David will
testify as an economist on commercial success, a secondary
consideration in Defendant’s defense that U.S. Patent No.
5,583,122 (“the ‘I22 patent") is obvious. Id. Plaintiff filed

Case 1:04-cv-00940-JJF Document 76 Filed 08/O4/2006 Page 2 of 4
its reply in support of its Motion in Limine on July 12, 2006.
II. DISCUSSION
A court has broad discretion to admit or exclude evidence
under the Federal Rules of Evidence. Gumbs v. 1nt’l Harvester,
Inc., 718 F.2d 88, 97 (3d Cir. 1983). Federal Rule of Evidence
702 states:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods
reliably to the facts of the case.
Fed. R. Evid. 702. The Rules of Evidence do not permit expert
testimony as to legal conclusions. Watkins v. New Castle County,
374 F. Supp. 2d 379, 393 (D. Del. 2005) (citing Salas by Salas v.
Wang, 846 F.2d 897, 905 n.5 (3d Cir. 1988)); see Fed. R. Evid.
704.
Here, the Court concludes that Dr. David’s Expert Report
would not assist a trier of fact and exceeds the scope of his
expertise as an economist. Under Rule 702, the Court is
obligated to ensure that any scientific testimony or evidence
admitted is relevant and reliable. Watkins, 374 F. Supp. 2d at
391. Defendant contends that Dr. David would limit his testimony
to “the economic issues raised in Dr. Smith's report,
specifically the economic import of the sales of the patented
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Case 1:04-cv-00940-JJF Document 76 Filed 08/O4/2006 Page 3 of 4
product on the issue of obviousness." (D.I. 68). Dr. David’s
Expert Report contains no statement limiting his testimony to
obviousness and instead states that Dr. David will offer an
opinion on the relevance of information related to commercial
success. (D.1. 66 Ex. A). In the Court's view, Dr. David’s
Report focuses on case law related to commercial success and
discusses its applicability to the instant action, and therefore,
the Court concludes that Dr. David’s Expert Report is a legal
opinion that is inadmissible under Rule 702 because it will not
assist the Court in resolving a fact in issue. Accordingly, the
Court will grant Plaintiff’s Motion In Limine To Strike The
“Expert Report of Jesse David, Ph.D.” However, the Court will
allow Defendant to submit a revised expert report from Dr. David
that presents his opinions as an economist on the issue of
commercial success.1
I Because Plaintiff’s motion asserts a violation of the
Court's Scheduling Order, the Court must apply the “Pennypack
factors" to determine whether Plaintiff is unduly prejudiced or
surprised or whether Defendant's actions are in bad faith or
demonstrate a willing failure to comply with the Court's Order.
ABB Air Preheater v. Regenerative Envtl. Eguip. Co., 167 F.R.D.
668, 672 (D.N.J. 1996)(quoting Meyers v. Pennypack Woods Home
Ownership Ass‘n, 559 F.2d 894, 904-905 (3d Cir. 1977)). Here,
the Court concludes that neither prejudice nor bad faith exists.
Defendant filed Dr. David’s Expert Report on April 12, 2006, well
in advance of the bench trial scheduled for November 6, 2006, and
in rebuttal to Plaintiff’s secondary consideration evidence of
commercial success. gd. at 672-73.
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Case 1:04-cv-00940-JJF Document 76 Filed 08/O4/2006 Page40f4
ORDER
NOW THEREFORE IT TS HEREBY ORDERED that Plaintiff‘s Motion
In Limine To Strike The “Expert Report of Jesse David, Ph.D." is
GRANTED. Defendant is permitted to submit a revised expert
report from Dr. David, consistent with this Memorandum Order, no
later than September 1, 2006.
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L" ITED STAT S DTSTRT; JUDGE
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