Medtronic Vascular Inc. et al v. Advanced Cardiovascular Systems Inc. et al

Filing 857

STIPULATION AND ORDER re 854 Stipulation filed by Abbott Vascular Inc., Abbott Cardiovascular Systems Inc., Abbott Laboratories. Signed by Judge Edward M. Chen on 6/18/09. (bpf, COURT STAFF) (Filed on 6/18/2009)

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Case3:06-cv-01066-PJH Document854 Filed06/17/09 Page1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOLEY & LARDNER LLP ONE MARITIME PLAZA, 6TH FLOOR SAN FRANCISCO, CA 94111-3409 TEL: (415) 434-4484; FAX: (415) 434-4507 NANCY J. GEENEN, BAR NO. 135968 ngeenen@foley.com FOLEY & LARDNER LLP 777 EAST WISCONSIN AVENUE, SUITE 3800 MILWAUKEE, WI 53202-5306 TEL: (414) 271-2400; FAX: (414) 297-4900 RICHARD S. FLORSHEIM, PRO HAC VICE rflorsheim@foley.com ATTORNEYS FOR PLAINTIFFS, MEDTRONIC VASCULAR, INC., MEDTRONIC USA, INC., MEDTRONIC, INC., AND MEDTRONIC VASCULAR GALWAY, LTD. KEKER & VAN NEST LLP 710 SANSOME STREET SAN FRANCISCO, CA 94111 TEL: (415) 391-5400; FAX: (415) 397-7188 ROBERT A. VAN NEST, BAR NO. 84065 rvannest@kvn.com LEO L. LAM, BAR NO. 181861 llam@kvn.com ATTORNEYS FOR PLAINTIFF, EVYSIO MEDICAL DEVICES ULC FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER LLP STANFORD RESEARCH PARK, 3300 HILLVIEW AVENUE PALO ALTO, CA 94304-1203 TEL: (650) 849-6600 FAX: (650) 849-6666 ROBERT F. MCCAULEY III, BAR NO. 162056 robert.mccauley@finnegan.com LILY LIM, BAR NO. 214536 lily.lim@finnegan.com FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER LLP 901 NEW YORK AVENUE, N.W. WASHINGTON, D.C. 20001-4413 TEL: (202) 408-4000 FAX: (202) 408-4400 MICHAEL A. MORIN, PRO HAC VICE michael.morin@finnegan.com JAMES R. BARNEY, PRO HAC VICE james.barney@finnegan.com ATTORNEYS FOR DEFENDANTS, ABBOTT CARDIOVASCULAR SYSTEMS, INC., ABBOTT LABORATORIES, AND ABBOTT VASCULAR, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MEDTRONIC VASCULAR, INC. MEDTRONIC USA, INC., MEDTRONIC, INC., MEDTRONIC VASCULAR GALWAY, LTD., and EVYSIO MEDICAL DEVICES ULC Plaintiffs/CounterclaimDefendants v. ABBOTT CARDIOVASCULAR SYSTEMS INC., ABBOTT LABORATORIES, and ABBOTT VASCULAR, INC. Defendants/CounterclaimPlaintiffs CASE NO. 06-01066-PJH (EMC) DISCOVERY MATTER STIPULATION TO SHORTEN TIME; [PROPOSED] ORDER Trial in this patent case is scheduled to begin on July 27, 2009, and the final pretrial conference is July 9, 2009. Abbott filed a Daubert motion seeking to preclude the expert testimony of Dr. David Ku. This motion is scheduled to be heard on July 9, during the final pretrial conference. In connection 1 STIPULATION TO SHORTEN TIME Case No. C-06-01066 PJH (EMC) Case3:06-cv-01066-PJH Document854 Filed06/17/09 Page2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with Plaintiffs' Opposition to Abbott Defendants' motion, which is due to the Court on Thursday, June 18, 2009, Dr. David Ku prepared a declaration. It is Plaintiffs' position that this declaration does not contain information not otherwise made known to Abbott, but out of an abundance of caution, and pursuant to Fed. R. Civ. P. 26(e)(2), Plaintiffs served this declaration as a "supplement" on Tuesday, June 9, 2009. It is Abbott's position that the Ku Declaration, which specifically states that it was submitted "to supplement [Dr. Ku's] previous expert report" and contains 18 new paragraphs never addressed in his prior report, is an improper attempt to file a new report on the eve of trial. On Wednesday, June 10, 2009, Abbott asked Plaintiffs to meet and confer, but due to the press of other pretrial obligations, Plaintiffs' counsel were unable to schedule a time until yesterday afternoon. The parties met and conferred yesterday afternoon and were unable to resolve the dispute (for reasons that will be explained in their papers). Abbott is drafting a motion to strike the Supplemental Report. Because trial is scheduled to begin on July 27, and the final pretrial conference is scheduled for July 9, the parties agree that (provided the Court agrees) it would be best to have this dispute decided on an expedited basis and, if possible, before the final pretrial conference. For these reasons, the parties stipulate that, with the Court's permission, Abbott's motion to strike the Supplemental Report be briefed and heard on shortened time, according to the following schedule: Friday, June 19, 2009 Friday, June 26, 2009 By 10:00 a.m. Wednesday, July 1, 2009 July 8, 2009 Abbott files motion to strike the Supplemental Report Plaintiffs file opposition brief Abbott files reply brief Hearing on Abbott's motion at 3:00 p.m. By his signature below, counsel for Abbott affirms under penalty of perjury that counsel for the Medtronic Plaintiffs concurred in the filing of this document. 2 STIPULATION TO SHORTEN TIME Case No. C-06-01066 PJH (EMC) Case3:06-cv-01066-PJH Document854 Filed06/17/09 Page3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATE: June 17, 2009 FOLEY & LARDNER LLP BY: _____s/____________ Jeffrey N. Costakos Attorneys for Plaintiffs Medtronic Vascular, Inc., Medtronic USA, Inc., Medtronic, Inc., and Medtronic Vascular Galway, Ltd. DATE: June 17, 2009 FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P. BY: _____s/__________ Robert F. McCauley Attorneys for Defendants Abbott Cardiovascular Systems, Inc., Abbott Laboratories, and Abbott Vascular, Inc. [PROPOSED] ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED. DATE: June 18 , 2009 Edward M. Chen United States Magistrate DERED R Judge UNIT ED S S DISTRICT TE C TA RT U O R NIA OO IT IS S DIFIED AS MO dwa Judge E rd M. C ER N F D IS T IC T O R 3 STIPULATION TO SHORTEN TIME Case No. C-06-01066 PJH (EMC) A C LI FO hen NO RT H

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