Medtronic, Inc. et al v. AGA Medical Corporation

Filing 487

ORDER GRANTING MEDTRONIC'S ADMINISTRATIVE MOTION FOR RELIEF FROM PRETRIAL PREPARATION ORDER. Medtronic's expert report on the issue of OTDP shall be served no later than May 11, 2009, and Medtronic shall make its expert available for deposition, limited to the issues raised in such report, no later than May 18, 2009. Signed by Judge Maxine M. Chesney on May 8, 2009. (mmclc2, COURT STAFF) (Filed on 5/8/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is plaintiffs Medtronic, Inc., Medtronic USA, Inc., and Medtronic Vascular, Inc.'s (collectively, "Medtronic") Motion for Administrative Relief from the Court's Pretrial Preparation Order Deadline for Expert Reports, by which Medtronic seeks leave to "serve one or two expert reports to rebut AGA's newly-pleaded defense of ObviousnessType Double Patenting (`OTDP')." (See Mot. filed Apr. 30, 2009 at 1:4-6.) Defendant AGA Medical Corporation ("AGA") has filed opposition. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows. Medtronic received AGA's expert report as to the issue of OTDP on January 23, 2009, and, on February 4, 2009, moved to strike said opinion. Although Medtronic's motion to strike AGA's expert's opinion as to OTDP was denied by Magistrate Judge Edward M. Chen (see Order filed Mar. 2, 2009 at 7), Magistrate Judge Chen's order was not issued until after the February 6, 2009 deadline for the service of rebuttal expert reports. There is v. AGA MEDICAL CORPORATION, Defendant. / MEDTRONIC, INC., et al., Plaintiffs, No. C-07-0567 MMC ORDER GRANTING MEDTRONIC'S ADMINISTRATIVE MOTION FOR RELIEF FROM PRETRIAL PREPARATION ORDER United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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no suggestion in Magistrate Judge Chen's order that Medtronic's motion had been brought in bad faith, and, in light of the Court's having continued the trial date in the instant action to July 6, 2009, AGA has failed to show it will be prejudiced by the proposed timing of Medtronic's expert report on the issue of OTDP. Under such circumstances, the Court finds it appropriate to extend the expert disclosure deadline for the limited purpose of affording Medtronic an opportunity to serve a rebuttal expert report on the issue of OTDP. Accordingly, Medtronic's motion is hereby GRANTED. Medtronic's expert report on the issue of OTDP shall be served no later than May 11, 2009, and Medtronic shall make its expert available for deposition, limited to the issues raised in such report, no later than May 18, 2009. IT IS SO ORDERED.

Dated: May 8, 2009

MAXINE M. CHESNEY United States District Judge

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