C R Bard Inc. et al v. AngioDynamics Inc.
Filing
358
MEMORANDUM AND ORDER granting in part and denying in part the parties' motions in limine as stated in the Memorandum Order re 344 Proposed Pretrial Order Signed by Judge Joseph F. Bataillon on 7/18/2018. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
C R BARD INC., and BARD PERIPHERAL
VASCULAR, INC.,
1:15CV218
Plaintiffs,
MEMORANDUM AND ORDER
v.
ANGIODYNAMICS INC.,
Defendant.
This matter is before the court on various motions in limine filed by C R Bard, Inc.,
and Bard Peripheral Vascular Inc. (hereinafter collectively referred to as Bard) Filing No.
344-14, Ex. 12, and by AngioDynamics, Filing No. 344-15, Ex. 13. The parties submitted
motions/briefs numbering 105 pages.
Although the motion in limine is an important tool available to the trial judge to
ensure the expeditious and evenhanded management of the trial proceedings, performing
a gatekeeping function and sharpening the focus for later trial proceedings, some
evidentiary submissions cannot be evaluated accurately or sufficiently by the trial judge
in such a procedural environment. Jonasson v. Lutheran Child and Family Servs., 115
F.3d 436, 440 (7th Cir. 1997).
A motion in limine is appropriate for “evidentiary
submissions that clearly ought not be presented to the jury because they clearly would
be inadmissible for any purpose.” Id. In other instances, it is necessary to defer ruling
until during trial, when the trial judge can better estimate the impact of the evidence on
the jury. Id. The Eighth Circuit has noted that “[e]videntiary rulings made by a trial court
during motions in limine are preliminary and may change depending on what actually
happens at trial.” Walzer v. St. Joseph State Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000).
“Evidentiary rulings, especially ones that encompass broad classes of evidence, should
generally be deferred until trial to allow for the resolution of questions of foundation,
relevancy, and potential prejudice in proper context.” See Leonard v. Stemtech Health
Scis., Inc., 981 F. Supp. 2d 273, 276 (D. Del. 2013). To the extent that a party challenges
the probative value of the evidence, an attack upon the probative sufficiency of evidence
relates not to admissibility but to the weight of the evidence and is a matter for the trier of
fact to resolve. i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d 831, 854 (Fed. Cir. 2010).
Motion in Limine, Filing No. 344-14, Ex. 12
Bard first contends that AngioDynamics is attempting to redefine certain claim
constructions already decided by the court. The court has previously determined and
stated that all claims/evidence must comport with the claim constructions in this case.
Memorandum and Order, Filing No. 356. Any other contradictory evidence will not be
permitted. If either party attempts to introduce evidence outside of the claim construction,
the opposing party may object and bring it to the court’s attention at trial.
Bard also contends that Mr. Chad Campbell was originally designated as a
30(b)(6) witness (designated witness for an organization). Prior to taking his deposition,
AngioDynamics withdrew Mr. Campbell as an expert. He only joined AngioDynamics in
the summer of 2016, a year after the filing of this lawsuit. AngioDynamics has now
indicated that he is very likely to be called to testify. It is difficult at this juncture to
determine what Mr. Campbell intends to testify about and whether Bard was aware of this
testimony. The court will determine this issue as the evidence is presented at trial.
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Bard next argues that the testimony of Anthony David Smith should be confined to
facts, because he has not been timely designated as an expert witness. AngioDynamics
argues that Bard had plenty of time to question Mr. Smith during his seven-hour
deposition. AngioDynamics contends that any questions regarding his knowledge can be
covered in cross-examination. To the extent that Bard had the opportunity to question
Smith pursuant to Mr. Smith’s designation, the court is inclined to permit that evidence.
However, to the extent that AngioDynamics wants to question Smith outside of the
designation, the court is not likely to allow expert testimony not disclosed to Bard. The
court will further address these issues as they arise at trial.
Bard next argues that AngioDynamics should be precluded from introducing
argument and evidence that is misleading and prejudicial and without a factual basis.
Bard contends that AngioDynamics is speculating about motives for filing the lawsuit and
use of certain words like “monopolies” and “stifle competition”. The court will not permit
the use of inappropriate words such as monopolize. See Genzyme Corp. v. Atrium Med.
Corp., 315 F. Supp. 2d 552, 586 (D. Del. 2004) (citing Jamesbury Corp. v. Litton Indus.
Prods., Inc., 756 F.2d 1556, 1559 (Fed. Cir. 1985)) (noting “use of the word monopoly
was inappropriate, since the use of this word may be pejorative.”) The terminology used
at trial should be relevant to the case and issues before the court.
Likewise, Bard argues that AngioDynamics should be precluded from discussing
other cases wherein Bard has sued AngioDynamics. See e.g., Power Integrations, Inc.
v. Fairchild Semiconductor Int'l, Inc., 2007 WL 7658923, at *1 (D. Del. Sept. 14, 2007)
(“The Court concludes that the potential prejudice to Power Integrations of having the jury
hear that the patents have been called for review by the PTO outweighs the probative
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value of the evidence.”). The court leans towards disallowing this testimony, but it will
take the issue under advisement until such time as it is going to be mentioned at trial. If
it is relevant evidence related to a claim or defense, the court will further consider it.
Bard next moves to exclude surveys that it conducted in 2004 and 2005 related to
power injection for proof of the matter asserted, because the results are hearsay.
Likewise, to the extent Dr. Vogelzang’s expert testimony relies on these results, his
testimony should also be excluded contends Bard. The surveys include out of court
statements by technicians, nurses, physicians, and include summaries of responses.
Consequently, they violate Fed. R. Evid. 801, argues Bard.
See also Brokerage
Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 516 n.14 (3d Cir. 1998). Second,
contends Bard, there are no applicable hearsay exceptions. See, e.g., Pittsburgh Press
Club v. U.S., 579 F.2d 751, 760 (3d Cir. 1978) (reversing the district court’s decision to
admit into evidence a survey that was a summary and distillation of 281 declarations
offered to prove the truth of the matters asserted). AngioDynamics contends the surveys
are admissible as a non-hearsay party admission under Fed. R. Evid. 801(2)(A). See
United States v. Dentsply Int’l, Inc., 277 F. Supp. 2d 387, 454 (D. Del. 2003) (admitting
surveys commissioned by a party and its analysis of the surveys as non-hearsay party
admissions).
Bard contends this is an erroneous interpretation by AngioDynamics
because the responses were not “made by the party in an individual or representative
capacity” as required by 801(2)(A).
Second, Bard contends it never adopted such
surveys, and third, they are not business records, as they do not meet the requirements
of 803(6). The court leans towards excluding some, if not all, of these surveys for the
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reasons stated by Bard. However, the court will not rule on these issues until it sees how
the evidence is presented at trial.
Next, Bard wants this court to exclude any testimony and evidence regarding
inequitable conduct offered by AngioDynamics. AngioDynamics asks this court to allow
the jury to issue an advisory opinion on the equitable conduct claims. The court agrees
with Bard. It is not for the jury to decide issues related to inequitable conduct. See
Interdigital Commc'ns Inc. v. Nokia Corp., 2014 WL 12465431, at *1 (D. Del. Aug. 28,
2014) (“Inequitable conduct is not a matter for the jury to decide, and the jury should not
hear any of that evidence unless it is independently admissible for some other purpose.”)
The court will hear this evidence and decide the equitable conduct claims.
Motion in Limine, Filing No. 344-15, Ex. 13
AngioDynamics first moves this court to preclude Bard from suggesting that it
invented power injectable ports or power injection procedures. This is an issue that can
be handled on cross examination. If Bard chooses to assert this claim, AngioDynamics
can attempt to rebut it at trial.
Next, AngioDynamics moves to preclude Bard from suggesting that, to invalidate,
prior art ports must have been marketed, sold, or otherwise indicated for use in power
injection. In response, Bard states:
AngioDynamics’s motion in limine is wholly unnecessary. Bard has never
maintained that FDA approval of a port to be marketed or sold as a power
injectable port is a claim element, which AngioDynamics itself acknowledges in
its motion by quoting Bard’s experts. Nonetheless, AngioDynamics’s motion
further suggests that Bard’s experts cannot offer evidence of a port’s approval for
power injection by the FDA. This is illogical and wrong. A port having FDA
approval to be sold or marketed as a power injectable port is highly probative
evidence in this case. In fact, it is likely the most probative evidence with respect
to several claim elements.
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Filing No. 344-15, at 17. Bard agrees that the marketing and sold language is a nonissue.
Regarding the power injection issue, if Bard raises the issue, AngioDynamics can clearly
cross examine the witnesses. Again, the court will see how this evidence is presented at
trial and will make appropriate rulings, at that time, if necessary.
AngioDynamics next moves to preclude evidence and argument relating to
secondary indicia of non-obviousness. AngioDynamics states: “Bard’s attempted proffer
of secondary considerations evidence violates the cardinal rule of law that the proponent
(here, Bard) must prove a nexus between each alleged secondary consideration and a
specific claim element.” Filing No. 344-15, at 23. Further, AngioDynamics argues that
the secondary considerations analysis does nothing more than conflate the Asserted
Claims with the power injection. Bard argues this is not appropriate for a motion in limine,
as it actually is a request for judgment as a matter of law prior to the trial. The court
agrees with Bard. Again, the court will allow this evidence to go to trial. If Bard is unable
to make the appropriate evidentiary showing at trial, AngioDynamics can cross examine
the witness or further motion the court.
AngioDynamics next asks this court to prevent Bard from using undisclosed
evidence, namely evidence that was not produced or identified during discovery. First,
AngioDynamics contends that Bard may not tell the jury about undisclosed/non-produced
Non-Disclosure
Agreements
(NDA’s)
regarding
market
surveys.
Second,
AngioDynamics states that Bard failed to identify customer hospitals, individuals who
performed the method steps or evidence of direction or control over either and cannot
use this information now to show actual use. Bard argues, to the contrary, that there is
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no undisclosed evidence that it intends to present at trial. Again, Bard contends that
AngioDynamics is asking this court to issue pretrial rulings as to the merits of its case,
without first listening to the evidence. Apparently, there are missing NDA’s but Bard
produced all those that are in existence. Again, the court will listen to the evidence as
presented and make a ruling, at that time, if necessary.
Last, AngioDynamics moves to preclude Bard from attempting to establish an
invention date before April 25, 2006, arguing Bard cannot prove an invention date prior
to that time. Bard counters, contending again that this is an argument for summary
judgment, not one for a motion in limine. The court agrees. This is an issue that cannot
be decided on a motion in limine. The court will hear testimony and evidence at trial, and
the parties can make the appropriate arguments at that time.
THEREFORE, IT IS ORDERED THAT Bard’s motions in limine, Filing No. 344-14,
Ex. 12, are granted in part and denied in part as set forth herein; AngioDynamics motions
in limine, Filing No. 344-15, Ex. 13, are granted in part and denied in part as set forth
herein.
Dated this 18th day of July, 2018.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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