Bayer Pharma AG et al v. Watson Laboratories Inc.

Filing 112

MEMORANDUM ORDER re motions in limine. Signed by Judge Leonard P. Stark on 11/10/14. This order has been emailed to local counsel. (Unsealed on 11/12/14) (ntl) Modified on 11/12/2014 (ntl). (Main Document 112 replaced on 11/12/2014) (ntl).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BA YER PHARMA AG, ET AL.,
Plaintiffs,
Civil Action No. 12-1726-LPS

v.

WATSON LABO RA TORIES, INC.,
Defendant.
MEMORANDUM ORDER
At Wilmington this 10th day of November, 2014, having reviewed the parties' proposed
pretrial order including briefing on various motions in limine ("MIL") (D.I. 108 Exs. 8, 9, 10),
IT IS HEREBY ORDERED that:
1.

Defendant Watson's MIL 1 is DENIED. Plaintiffs (collectively hereinafter

"Bayer") do not intend to elicit from their expert, Dr. Vellturo, the opinions Watson seeks to
strike, i.e., "speculation about what would have happened or might happen in the future" relating
to commercial success. (D.1. 108 Ex. 8 at 2; see also id. Ex. 9 at 1) Instead, Dr. Vellturo intends
to testify, appropriately, to his opinion that Plaintiffs' product (Natazia®) has been commercially
successful to date and may achieve even greater success with ordinary levels of promotional
support. (D .I. 108 Ex. 9 at 1) Watson, of course, is free to challenge these opinions through
cross-examination and the presentation of competing evidence. In other words, the Court has not
made a finding to accept what Watson describes as Dr. Vellturo' s "excuses for why its
[Natazia®'s] sales were not higher and his predictions about its future sales" (id. Ex. 10 at 1);
instead, the Court has only concluded that Bayer may attempt at trial to make its case as to

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commercial success.
2.

Watson's MIL 2 is DENIED. The Court is not persuaded that the fact that

Plaintiffs have received a patent other than the patent-in-suit expressly covering one FDAapproved indication for the drug product at issue - Natazia®, which Plaintiffs contend is an
embodiment of the patent-in-suit - leads per se to the conclusion that Plaintiffs cannot also make
out a prima facie case of commercial success in relation to the patent-in-suit. Watson's
contentions appear to go to the weight to be accorded to Bayer's evidence of commercial success,
not its admissibility.
3.

Watson's MIL 3 is DENIED. The Court is not persuaded that Bayer is

impermissibly attempting to use Dr. Vellturo as a mere "conduit" to transmit the hearsay
"testimony" of Mr. DiMichele. To the contrary, it appears that Dr. Vellturo formed his own
opinions in this case and intends to testify as to them.
4.

Because this Order is filed under seal, the parties shall submit a proposed redacted

version no later than November 13, 2014, and thereafter the Court will issue a public version of
this Order.

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STATES DISTRICT JUDGE