Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Filing 1120

DECLARATION re #1119 MOTION in Limine to Preclude Opinion Testimony of Amgen's Expert Witness Dr. Friedman Based on Improper Instructions Not to Answer at His Deposition (of Howard S. Suh) by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc.. (Attachments: #1 Exhibit A)(Toms, Keith)

Case 1:05-cv-12237-WGY

Document 1120-2

Filed 09/24/2007

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Friedman, Dr. Eli CONFIDENTIAL

8/17/2007

Exhibit A
Page 1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No. 05-12237 WGY AMGEN, INC., ) DEPOSITION OF: ) DR. ELI FRIEDMAN ) Plaintiff, ) ) **CONFIDENTIAL** vs. ) ) ) F. HOFFMANN-LA ROCHE LTD., a ) Swiss Company, ROCHE ) DIAGNOSTICS GmbH, a German ) Company, and HOFFMANN-LA ) ROCHE, INC., A New Jersey ) Corporation, ) ) Defendants. )

TRANSCRIPT of the stenographic notes of the proceedings in the above-entitled matter, as taken by and before LISA FORLANO, RMR, CRR, CSR, CLNR, Notary Public, held at the Marriott Hotel, 333 Adams Street, Brooklyn, New York, on Friday, August 17, 2007, commencing at 9:02 a.m.

(This transcript contains testimony designated CONFIDENTIAL as per Section 5(c) of the Amended Protective Order. Please treat the entire transcript in accordance with the protective order.) LiveNote World Service 800.548.3668 Ext. 1 PLEASE TREAT TRANSCRIPT IN ACCORDANCE WITH THE PROTECTIVE ORDER

Case 1:05-cv-12237-WGY

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Friedman, Dr. Eli CONFIDENTIAL

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Page 40 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 knew that Roche was seeking to have it as an approved drug. Q Having both epogen and Aranesp on the

market, having the choice of two drugs, do you believe that that's beneficial to physicians? MR. MADRID: Objection, instruct the Calling for opinions

witness not to answer.

that are squarely outside the scope of the expert report. BY MR. FLEMING: Q Doctor? A Q Yes. As a physician do you want to have Are you going to follow his advice,

choice of medications for treating your patients? MR. MADRID: Objection, calls for

opinions that are squarely outside the scope of the report. answer. BY MR. FLEMING: Q A Q Are you going to follow that, Doctor? Yes. Do you believe that it enhances I instruct the witness not to

patients' quality of life to have choices of all medications to treat whatever illnesses they may be

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Friedman, Dr. Eli CONFIDENTIAL

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Page 41 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 suffering from? MR. MADRID: to answer. I instruct the witness not

This is as well outside the scope He's not made any opinions on

of the report.

the particular subject. BY MR. FLEMING: Q Doctor? A Q Yes. You talked and you explained to me how Are you going to follow that advice,

the quality of life covered a wide gamut of things concerning patients and patient care, correct? A I commented on how the quality -- the I did not talk

term quality of life was defined.

about how quality of life applied to patients. Q Do you think that having your choice of

pharmaceuticals improves the quality of life for patients? MR. MADRID: I object and I instruct Again, he's not

the witness not to answer.

rendered any opinion on the question of choice. It's outside the scope of the report.

You're wasting your time in this deposition, so I instruct the witness not to answer. BY MR. FLEMING:

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Friedman, Dr. Eli CONFIDENTIAL

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Page 254 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 break. VIDEO OPERATOR: 2:58 p.m. End of tape number four. (Brief recess.) VIDEO OPERATOR: record 3:11. Beginning of tape number five. MR. MADRID: for the record. I want to make a statement We're returning to the Going off the record, MR. MADRID: I object. It calls for a legal conclusion with respect to the description of the patent. and ambiguous. THE WITNESS: BY MR. FLEMING: Q A Q You didn't analyze it? I did not analyze it. It was the problem with my question, Yes. It's also vague

not your answer. MR. FLEMING: MR. MADRID: MR. FLEMING: THE WITNESS: Can I have 51, please. Let's take a break. Would you like a break? Yes, I would like a

This morning there were

questions asked with respect to quality of

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Page 255 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 life and to the extent that there were instructions not to answer those questions, I'm going to not -- I'm going to withdraw those instructions not to answer and offer counsel an opportunity to ask his questions. However, it still remains our position that the testimony sought is outside the scope of the report and it's irrelevant. I will make

my objections one by one as the questions go on. MR. FLEMING: Counsel, your conduct

this morning in directing this witness not to answer, as I feel inappropriately doing so, has impeded my ability in the flow of my questions in this deposition. To at this late

hour, quarter after three, after we're gone on for this long with this witness to now to change your position is now prejudicial to me and I'm going to do what I can do with this witness during this deposition and if I feel based on your change of heart that I need a further deposition, I'll apply to the Court for that, but I'm going to take the position that by virtue of you having instructed this witness not to answer, you have precluded this

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Page 366 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 A Q know that? A I've heard -MR. MADRID: legal conclusion. THE WITNESS: BY MR. FLEMING: Q Did you do any comparison of the claims I've heard that. Objection, calls for a Yes. And this patent has expired, do you

of this patent and the claims of the two patents you looked at, the '422 and the '933? A No, because I felt I would not have

been competent to do that comparison. Q And you're not offering any opinions

about the -- any relationship between the claims of this '008 Patent, which is Friedman-22 and the two patents that you comment upon in your report, correct? A Q No, I am not. Are you aware that there are other

patents-in-suit in this case beyond the '422 and the '933? A Q I have been so advised. And am I correct that you're not

offering any opinions on those patents at all?

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Page 367 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 A A Q A Correct. And you have no intention of doing so? If I show the good judgment I should

show, I will not. Q Do you have any understanding as to

whether what you have termed the quote, unquote, long felt need in the Chronic Renal Failure area in the United States was satisfied by the product of the claims of this '088 Patent? MR. MADRID: Objection, vague and

ambiguous, calls for a legal conclusion. THE WITNESS: My problem in answering

would be made easier if you could tell me the principal claim and conclusion of the '088 Patent. BY MR. FLEMING: Q Well, it's entitled DNA Sequences and

Encoding Erythropoietin. Do you see that? Yes, but I am not comfortable in saying

this early what the main visceral thrust of each patent was and why the expired patent cripple anything or doesn't cripple anything. person to ask. Q So you don't know, am I correct? I'm not the

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Page 368 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 please. A Q That's a better answer. As you sit here whether, in fact,

whatever alleged invention of the '088 would have satisfied that need that you identified in your report as opposed to the other two patents you looked at? MR. MADRID: lacks foundation. THE WITNESS: BY MR. FLEMING: Q A Q I'm correct? Yes. You're not saying it doesn't, you just Yes. Objection, misleading,

haven't done the analysis? A I could go one step beyond that and say

I don't know that I'm the person to do the analysis, just looking at the pages in the patent leaves me in the dust. Q Okay. MR. FLEMING: 23, please. (AM-ITC0056301 - AM-ITC0056310 was marked Friedman-23 for identification.) BY MR. FLEMING: Q Dr. Friedman, I've put in front of you Could we mark this as 23,

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