Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-00940-JJF Document 72 Filed 07/12/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE Q
T““i””"Y>
THE PROCTER & GAMBLE COMPANY, ) r
Plaintiff, ) _
v. ) Civil Action No. 04-940-JJF I
TEVA PHARMACEUTICALS USA, INC., )
Defendant. I )
(
REPLY IN SUPPORT OF THE PROCTER & GAMBLE COMPANY’S MOTION IN
LIMINE TO STRIKE THE "EXPERT REPORT OF JESSE DAVID, PH.D."
In its Opposition to The Procter & Gamble Company’s Motion in Lirnine to Strike the
"Expert Report of Jesse David, Ph.D." ("Opp."), Teva asserts that "P&G has failed to justify
the exclusion of Dr. David’s report and testimony" because, among other reasons, P&G has
shown no prejudice. (Opp. at 1). This argument not only misses the point of P&G’s motion, it
elides the fundamental problem with the David Report: the opinions contained therein are
inadmissible under the Federal Rules of Evidence. As set forth in P&G’s motion in lirnine, but
not addressed by Teva in its Opposition, Dr. David’s report and his testimony are inadmissible
for the reasons set forth below.
A. Dr. David Does Not Rebut P&G’s Expert Report On Commercial Success.
Teva represents to the Court that "Dr. David’s testimony will relate entirely to his
opinionsmabout the economic issues raised in Dr. Smith’s report," (Opp. at I), and that his
"testimony is strictly related to analyzing the economic realities in this case with respect to those
economic underpinnings so the Court can apply economic realities," (Opp. at 7). Dr. David’s I
report demonstrates otherwise. Dr. David does not cite a single document related to commercial
success, does not challenge any of the facts or opinions set forth in Dr. Smith’s report, does not
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Case 1:04-cv-00940-JJF Document 72 Filed 07/12/2006 Page 2 of 4
provide analysis regarding any “economic underpinnings? and instead offers legal analysis of i
caselaw. (See David Report at 4-5)-1 —
B. Dr. David Offers An Inadmissible "Oginion" On The Evidentiary Weight Of i
Commercial Success Evidence.
ln the very first sentence of his report, Dr. David states that he will "provide an opinion
regarding the relevance of information related to commercial success in an analysis of the
obviousness of a patent." (David Report at l (emphasis added)). Dr. David goes on to recite
caselaw from several jurisdictions to form his "opinion” that “[a}ny apparent commercial success
of Actonel therefore does not provide evidence that the claims at issue of the ‘l22 patent were 1
non—obvious, relative to the prior art, at the time the applications for that patent were filed.” A
legal opinion on the relevance or sufficiency of evidence is inadmissible. Determination of ‘
whether evidence is relevant is within the Court’s decision making power, and is not the .
province of experts. See, e. g., Watkins v. New Castle County, 374 F.Supp.2d 379, 393 (D. Del.
2005); see also Gordon v. Lewistown Hosp., 423 F.3d 184, 2l5 (3d Cir. 2005) (admissibility of
evidence is within the discretion of the trial judge).2 i
I To the extent Dr. David does intend to offer non—legal opinions at trial "about the
economic issues raised in Dr. Smith’s report," the David Report fails completely in its obligation 1
to disclose "a complete statement of all opinions to be expressed and the basis and reasons i
therefore? Fed.R.Civ.P 26(a), and Dr. David should be precluded from supplementing his (
opinions on those issues at this time. See nCabe Corp. v. Seachange Inr’l, Inc., 313 F.Supp.2d i
361, 386 (D. Del. 2004) (“Opinions of experts that are not contained in an expert’s report are
generally not admitted into evidence?).
2 Incredibly, Teva has filed a motion to strike the expert report and testimony of P&G’s
expert, Jerry Voight, whom P&G intends to offer to testify on the narrow subject of patent 2
interference practice and procedure, arguing that Mr. Voight’s opinions are legal in nature.
However, a comparison of Dr. David’s report with Mr. Voight’s reveals that, contrary to Teva’s
assertions, it is Dr. David, not Mr. Voight, who purports to offer a legal opinion.
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C. Dr. David’s Legal Opinion Will Not Assist The Trier Of Fact.
Dr. David’s legal opinion on the relevance of commercial success evidence is
inadmissible because it can in no way "assist the trier of fact to understand the evidence or to 7
determine a fact in issue." Fed. R. Evid. 702. 5
D. Dr. David Is Not Qualified To Offer The Legal Opinions Set Forth In His
Report. i
Even if it were proper for Teva to offer an expert to opine on the relevance of certain
evidence, Dr. David is an economist, not a lawyer, and therefore does not have the requisite
“knowledge, skill, experience, training, or education" to offer the "expert" legal conclusions in
his report. See Fed.R.Evid. 702.
For all these reasons and those set forth in P&G’s motion in limine, P&G respectfully
requests that this Court strike the David Report and preclude Dr. David or any other Teva expert .
from testifying about the topics addressed in the David Report at any deposition, hearing, or trial
in this matter. p l
Fredrick L. igottrgl III (#25%
Steven I. Finernan (#4025) ,
Richards Layton & Finger, P.A.
PO. Box 551 1
One Rodney Square
Wilmington, Delaware 19899-0551 p
(302) 651-7700 =
Attorneys for Plaintiff
The Procter & Gamble Company ‘ E
OF COUNSEL:
William F. Lee
David B- Bassett
Vinita Ferrera
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street .
Boston, Massachusetts 02109 2
(617) 526-6000 T
Dated: July 12, 2006 .
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Case 1 :04-cv-00940-JJF Document 72 Filed 07/12/2006 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of July, 2006, two true and correct copies of `
the foregoing were caused to be served on counsel of record at the following addresses as I
indicated: I
VIA FEDERAL EXPRESS
VIA HAND DELIVERY: james Galbraith E
Josy W. Ingersoll, Esq. Maria Luisa Palmese
Young Conaway Stargatt & Taylor, LLP Authcny Pfoffol. E
The Brandywine Building Kooyoo & Kooyoo
1000 West Street, 17th Floor Ooo BYOQGWHY
Wilmington, Delaware 19801 Now Yorka Now York 10004 3
Steven Eg ineman (#4025) T
RLFL3036545-l