ELI LILLY AND COMPANY et al v. ARCH INSURANCE COMPANY et al

Filing 1342

ORDER denying Upper Excess Carriers' #1309 Motion to Strike. See Order. Signed by Magistrate Judge Tim A. Baker on 9/2/2020. (SWM)

Case 1:13-cv-01770-TWP-TAB Document 1342 Filed 09/02/20 Page 1 of 3 PageID #: 65783

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ELI LILLY AND COMPANY,
ELI LILLY DO BRASIL LTDA,
Plaintiffs,
v.
ARCH INSURANCE COMPANY,
ARCH SPECIALTY INSURANCE COMPANY,
COMMERCIAL UNION INSURANCE
COMPANY N/K/A ONEBEACON AMERICA
INSURANCE COMPANY,
ENDURANCE AMERICAN SPECIALTY
INSURANCE COMPANY,
LIBERTY INSURANCE UNDERWRITERS
INC.,
RSUI INDEMNITY COMPANY,
WESTCHESTER SURPLUS LINES
INSURANCE CO.,
XL INSURANCE AMERICA, INC.,
Defendants.

COMMERCIAL UNION INSURANCE
COMPANY N/K/A ONEBEACON AMERICA
INSURANCE COMPANY,
Counter Claimant,
v.
ELI LILLY AND COMPANY,
ELI LILLY DO BRASIL LTDA,
Counter Defendants.

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No. 1:13-cv-01770-TWP-TAB

Case 1:13-cv-01770-TWP-TAB Document 1342 Filed 09/02/20 Page 2 of 3 PageID #: 65784

ORDER ON DEFENDANTS' MOTION TO STRIKE
Defendants, collectively referred to as the "Upper Excess Carriers," have filed a motion
to strike. [Filing No. 1309.] That motion seeks to strike the Eli Lilly Plaintiffs' evidentiary
appendix as well as the portions of Lilly's summary judgment opposition that reference a second
declaration by Jack Costigan. The motion to strike is denied.
As Lilly's response to the motion to strike points out, such collateral motions are
disfavored. [Filing No. 1323, at ECF p. 1-2.] Nevertheless, there are times when it is
appropriate to strike a filing. Lilly has certainly given the Upper Excess Carriers reason to
request such relief. Lilly sought leave to file a 90-page summary judgment response, but the
Court limited the filing to 65 pages. [Filing No. 1275, at ECP p. 4.] Undaunted, Lilly filed a 65page response brief as well as a 61-page "Evidentiary Appendix." These filings suggest Lilly is
attempting to circumvent the Court's order limiting the filing to 65 pages. Not so, claims Lilly,
noting Local Rule 56-1(e) permits a party to include an appendix of admissible evidence with its
summary judgment brief. [Filing No. 1309, at ECF p. 3.] True, but it is fair to say that a party
that is denied leave to file a 90-page brief, but generously given 65 pages for its response (well
beyond this Court's 35-page limit), should not try and push its luck by tacking on a 61-page
appendix.
So whether to strike this appendix is, indeed, a close question. The Court declines to do
so for several reasons. First, the local rules provide for an appendix. Second, the brief Lilly
submitted is within the page limitations the Court ordered. Third, motions to strike are
disfavored, and the Court prefers to address the merits of disputes rather than being sidetracked
by motions such as this one. Moreover, were the Court to strike the appendix, Lilly no doubt
would then seek leave to file some evidentiary support for its summary judgment response.

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Case 1:13-cv-01770-TWP-TAB Document 1342 Filed 09/02/20 Page 3 of 3 PageID #: 65785

Given the dust-ups that have occurred in this case already, Lilly's likely motion for leave would
seemingly draw an objection, which then would require the Court to address another collateral
matter. All the while an examination of the merits of this dispute would be on hold.
The Upper Excess Carriers' request to strike portions of Lilly's summary judgment
opposition that reference Costigan's second declaration is more straightforward. The Upper
Excess Carriers claim that the declaration is improper, and prejudicial, because Costigan
executed the affidavit after the discovery deadline. However, there is nothing improper about
submitting an affidavit in connection with a summary judgment response, or submitting expert
evidence to oppose summary judgment. As Lilly correctly points out, "The Upper Excess
Insurers can either respond to the expert declaration by submitting their own evidence or asking
to depose [Costigan], or they can ask the Court to disregard its significance. But they cannot
collaterally eliminate it from the record." [Filing No. 1323, at ECF p. 5.]
For these reasons, The Upper Excess Carriers' motion to strike [Filing No. 1309] is
denied.
Date: 9/2/2020

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution to all counsel of record

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