W.L. Gore & Associates Inc. et al v. C.R. Bard Inc.

Filing 711

MEMORANDUM ORDER re the Court's rulings on various motions in limine. Jury Selection set for 2/28/2017 09:30 AM in Courtroom 6B. Signed by Judge Leonard P. Stark on 2/8/17. (ntl)

IN THE UNITED STATES-DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

W.L. GORE & ASSOCIATES, INC.,
Plaintiff,
C.A. No. 11-515-LPS

v.
C.R. BARD, INC., and BARD
PERIPHERAL VASCULAR, INC.,
Defendants.

MEMORANDUM ORDER

At Wilmington this 8th day of February, 2017, having reviewed the parties' proposed
pretrial order ("PTO"), including briefing on various motions in limine ("MIL") (D.I. 692-697),
IT IS HEREBY ORDERED that:

1.

The Court will hear argument at the pretrial conference ("PTC") on Plaintiffs

MIL #4, to exclude evidence and argument relating to previous litigation.
2.

Plaintiffs MIL #5, to exclude evidence and argument relating to discovery

disputes, is GRANTED IN PART. It would be improper, irrelevant, unfairly prejudicial, and
confusing to the jury for the parties to refer to or re-fight discovery disputes at trial. Any
minimal probative value there may be would be substantially outweighed by the countervailing
concerns of Federal Rule of Evidence 403. Where relevant, the parties will be permitted to make
reference to the timing with which an expert was provided with particular evidence - and how
that evidence did (or did not) impact the expert's analysis and opinion- but without stating or
suggesting to the jury that such production was late, untimely, or in any manner improper.
3.

Plaintiffs MIL #6, to preclude arguments that are purportedly contrary to the
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Court's claim construction, is DENIED. The Court is not persuaded that the arguments Plaintiff
has identified - based on slides

Defendant~ intended to use in their opening statement when trial
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was scheduled to begin in December 20151- are contrary to the Court's claim construction. To
the extent Plaintiff is concerned about jury instructions, the Court will resolve disputes as to the
proper instructions during trial.
4.

Defendants' MIL #4, to exclude evidence or argument relating to Defendants'

LifeStream Stent Grafts, is GRANTED. Plaintiffs allegations as to the "apparent infringement"
of the patent-in-suit by thes_e stent grafts are untimely and unsupported by evidence in the record.
Permitting Plaintiff to do as it proposes would be unfairly prejudicial to Defendants - who have had no incentive or opportunity in this action to develop non-infringement evidence relating to
these products - and confusing to the jury, concerns that substantially outweigh whatever
minimal probative value this evidence might have. Plaintiffs contention that Defendants are
responsible for the lack of evidence in the record relating to these products is unpersuasive given
that at no point has Plaintiff sought relief relating to such discovery (an understandable decision,
given that these products were not marketed in the United States during the term of the patent-insuit).
5.

Defendants' MIL #5, to exclude certain license agreements, is DENIED. The
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Court is not persuaded that Federal Rule of Evidence 408 requires prohibiting the parties'
experts, and the jury, from considering, as part of their damages analysis, license agreements that
were negotiated by Defendants against a backdrop of litigation. See AstraZeneca AB v. Apotex

Corp., 782 F.3d 1324, 1336 (Fed. Cir. 2015) ("[T]here is no per se rule barring reference to
settlements simply because they arise from litigation."); ResQNet.com, Inc. v. Lansa, Inc., 594
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F.3d 860, 872 (Fed. Cir. 2010) ("This court observes as well that the most reliable license in this
record arose out oflitigation."); Dynetix Design Sols., Inc. v. Synopsys, Inc., 2013 WL 4537838,
at *7 (N.D. Cal. Aug. 22, 2013); Fenner Invs., Ltd. v. Hewlett-Packard Co., 2010 WL 1727916,
at *3 n.2 (E.D. Tex. Apr. 28, 2010) (citing cases). Defendants' concerns can be adequately
addressed through cross-examination and the presentation of competing evidence.
6.

The Court will hear argument at the PTC on Defendants' MIL #6, to preclude

Plaintiff from introducing evidence or argument concerning Plaintiffs trade secret litigation
against G. Ray Martin, a former employee of Plaintiff and of Defendants.
7.

Certain disputes raised in the proposed PTO are resolved as follows:
A.

(PTO p. 5) Defendants' proposal, that specific exhibits to be used for

cross-examination need not be disclosed the day before a witness is expected to testify, is
ADOPTED.
B.

(PTO p. 21) The Court will require a new version of proposed jury

instructions to be filed no later than the first day of trial, which shall reflect all of the Court's
rulings to that point, be the product of the parties' further efforts to reduce their disputes, and will
clearly and succinctly identify any remaining disputed language and the basis for each sides'
positions.
8.

The parties shall be prepared to address at the PTC all other disputed matters that

are raised in the PTO and not resolved here, including: limitations on use of testimony from prior ·
litigations; objections to witnesses; whether marking will be tried to the jury; opinions of
counsel; and whether damages and/or willfulness should be phased (i.e., the jury would hear
evid~nce,

argument, and instructions on damages and/or willfulness only if and after it
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determines infringement of a valid patent claim).
9.

The Court will hear argument at the PTC on the parties' motions to preclude

expert testimony (D.I. 654, 657).
10.

Each side has been allocated eighteen (18) hours for its presentation in the

forthcoming jury trial. (See D.I. 613 at 3)
a.

Jury selection will be held on Tuesday, February 28, 2017 beginning at

9:30 a.m. Counsel are to report to the courtroom by 9:00 a.m.
b.

Trial will begin on Wednesday, March 1at9:00 a.m. Counsel are to

report to the courtroom by 8:30 a.m. on that day and on all subsequent trial days.
c.

The trial will be held at some or all of the following times, provided that at

least one side has time remaining:
1.

Wednesday, March 1: 8:30 a.m. - 3:00 p.m.

11.

Thursday, March 2: 9:30 a.m. - 4:30 p.m.

111.

Friday, March 3; Monday, March 6: 8:30 a.m. - 4:30 p.m.

1v.

Tuesday, March 7: 10:30 a.m. - 4:30 p.m.

v.

Wednesday, March 8; Thursday, March 9; Friday, March 10:
8:30 a.m. - 4:30 p.m.

b~P 1 b

HON. LEONARD P. STARK
UNITED STATES DISTRICT COURT

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