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

Filing 1286

Opposition Response by Amgen Inc. to #1258 Brief of Defendants' to Strike Portions of Dr. Lin's Testimony for Lackof Personal Knowledge. (Rich, Patricia)

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

Doc. 1286

Case 1:05-cv-12237-WGY

Document 1286

Filed 10/04/2007

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMGEN, INC., Plaintiff, v. F. HOFFMANN-LAROCHE LTD., a Swiss Company, ROCHE DIAGNOSTICS GMBH, a German Company, and HOFFMANN LAROCHE INC., a New Jersey Corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 05 CV 12237 WGY

PLAINTIFF AMGEN INC.'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE PORTIONS OF DR. LIN'S TESTIMONY FOR LACK OF PERSONAL KNOWLEDGE Roche's motion to strike portions of Dr. Lin's testimony does nothing more than raise an argument that this Court has already considered and rejected on two separate occasions.1 As Roche's motion does not meet the high standard required for reconsideration, its motion to strike should be denied. On September 27, Roche filed a motion in limine to preclude Dr. Lin from testifying about certain work of which he had personal knowledge and for which he was responsible on the ground that he had not conducted the work himself.2 In response to questions posed by the Court, Dr. Lin testified to his then present-sense understanding as to how and what he knew, as project leader, regarding the EPO project and whether the project had attained its goals. Following Roche's objection, this Court considered the testimony proffered by Dr. Lin and
1

Additionally, on September 27, 2007, Roche filed a motion in limine on this exact issue. D.I. 1176. This Court did not expressly grant or deny that motion. Dr. Lin was permitted to testify, and no testimony was elicited by Amgen's counsel regarding the in vitro or in vivo assay experiments performed by other members of the EPO Project Team.
2

D.I. 1176.
1
Dockets.Justia.com

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concluded that his testimony may stand. 3 Subsequently, at the side bar, Roche further pressed its objection that such testimony was improper. This Court again considered and rejected Roche's argument.4 Roche now attempts to have this Court reconsider its decision where none of the requirements for a true motion for reconsideration are met. A motion for reconsideration should be granted "only when the movant demonstrates (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error of law."5 Roche does not and cannot demonstrate that any of these grounds for reconsideration exist. As this issue has been twice considered and rejected, Roche's request for further reconsideration should be denied. Even assuming that Roche's motion should not be considered as one for reconsideration, it should still fail. As the Court has made clear throughout Dr. Lin's examination, testimony regarding what a person believed at the time of the event is admissible.6 The testimony Roche seeks to strike is such evidence. Thus, contrary to Roche's position that there is "clean-up" to be done,7 Dr. Lin's presence sense impression of the progress and accomplishments of the EPO project over time is not only relevant, but also admissible.

3 4 5 6 7

9/27/07 Trial Tr. 1756:15. 9/27/07 Trial Tr. 1756:19-1757:21. Davis v. Lehane, 89 F. Supp. 2d 142, 147 (D. Mass. 2000). See e.g. 9/27/07 Trial Tr. 1737:6-9 D.I. 1258 at 3.

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October 4, 2007

Respectfully Submitted, AMGEN INC., By its attorneys,

Of Counsel: STUART L. WATT WENDY A. WHITEFORD MONIQUE L. CORDRAY DARRELL G. DOTSON KIMBERLIN L. MORLEY ERICA S. OLSON AMGEN INC. One Amgen Center Drive Thousand Oaks, CA 91320-1789 [phone]

/s/ Patricia R. Rich D. DENNIS ALLEGRETTI (BBO#545511) MICHAEL R. GOTTFRIED (BBO#542156) PATRICIA R. RICH (BBO#640578) DUANE MORRIS LLP 470 Atlantic Avenue, Suite 500 Boston, MA 02210 Telephone: [phone] Facsimile: [phone] LLOYD R. DAY, JR. (pro hac vice) DAY CASEBEER MADRID & BATCHELDER LLP 20300 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 Telephone: [phone] Facsimile: [phone] WILLIAM GAEDE III (pro hac vice) McDERMOTT WILL & EMERY 3150 Porter Drive Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] KEVIN M. FLOWERS (pro hac vice) MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago IL 60606 Telephone: [phone] Facsimile: [phone]

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CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as on-registered participants.

/s/ Patricia R. Rich Patricia R. Rich

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMGEN, INC., P laint iff, v. F. HOFFMANN-LAROCHE LTD., a Swiss Co mpany, ROCHE DIAGNOSTICS GMBH, a German Co mpany, and HOFFMANN LAROCHE INC., a New Jersey Corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Act io n No . 05 CV 12237 WGY

PLAINTIFF AMGEN INC.'S OPPOSITION TO DEFENDANT'S M OTION TO STRIKE PORTIONS OF DR. LIN'S TESTIMONY FOR LACK OF PERSONAL KNOWLEDGE Ro che's mo tio n to strike portio ns of Dr. Lin's testimo ny does nothing more than raise an argu ment that this Court has already considered and rejected o n t wo separate occasio ns.1 As Ro che's mo tio n does not meet the hig h standard required fo r reco nsid eration, its mo tio n to strike should be denied. On September 27, Roche filed a motion in limine to preclud e Dr. Lin fro m testifying abo ut certain work of which he had perso nal k no wledge and for which he was respo nsible on the ground that he had not co nducted the work himself.2 In response to questions po sed by the Co urt, Dr. Lin testified to his then present-sense understand ing as to how and what he knew, as project leader, regarding the EPO project and whet her the pro ject had attained its go als. Fo llo wing Ro che's objection, this Court co nsidered the testimo ny pro ffered by Dr. Lin and Addit ionally, on September 27, 2007, Roche filed a motion in limine on this exact issue. D.I. 1176. This Court did not expressly grant or deny that mo tion. Dr. Lin was permitted to testify, and no testimo ny was elicit ed by Amgen's co unsel regarding the in vitro or in vivo assay experiments perfo rmed by ot her members o f the EPO Project Team.
2 1

D.I. 1176.
1

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concluded that his testimo ny may stand.3 Subsequent ly, at the side bar, Roche further pressed its o bject io n that such testimony was impro per. This Court again considered and rejected Ro che's argu ment.4 Ro che no w attempts to have this Court reco nsider its decisio n where no ne o f the requ irements for a true motion for reco nsid eratio n are met. A mo tio n fo r reco nsiderat ion should be granted "only when the movant demo nstrates (1) an intervening chang e in t he law; (2) the d isco very of new evidence no t previously available; o r (3) a clear error of law."5 Roche does not and canno t demo nstrate that any of these gro unds fo r reco nsiderat ion exist. As this issue has been twice co nsidered and rejected, Roche's request fo r further reco nsideration should be denied. Even assuming that Ro che's mo tio n should no t be co nsidered as one for reconsiderat io n, it should still fail. As the Co urt has made clear throughout Dr. Lin's examinat ion, t estimo ny regarding what a perso n believed at the time o f the event is admissible.6 The testimo ny Ro che seeks to strike is such evidence. Thus, contrary to Roche's position that t here is "clean-up" to be done,7 Dr. Lin's presence sense impression o f the progress and acco mplishments of the EPO project o ver time is not only relevant, but also ad missib le.

3 4 5 6 7

9/27/07 Trial Tr. 1756:15. 9/27/07 Trial Tr. 1756:19-1757:21. Davis v. Lehane, 89 F. Supp. 2d 142, 147 (D. Mass. 2000). See e.g. 9/27/07 Trial Tr. 1737:6-9 D.I. 1258 at 3.

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October 4, 2007

Respect fu lly Submitted, AMGEN INC., By it s attorneys,

Of Co unsel: STUART L. WATT WENDY A. WHITEFORD MONIQUE L. CORDRAY DARRELL G. DOTSON KIMBERLIN L. MORLEY ERICA S. OLSON AMGEN INC. One Amgen Center Drive Thousand Oaks, CA 91320-1789 [phone]

/s/ Patricia R. Rich D. DENNIS ALLEGRETTI (BBO#545511) MICHAEL R. GOTTFRIED (BBO#542156) PATRICIA R. RICH (BBO#640578) DUANE MORRIS LLP 470 Atlantic Avenue, Su ite 500 Bo ston, MA 02210 Telep ho ne: [phone] Facsimile: [phone] LLOYD R. DAY, JR. (pro hac vice) DAY CASEBEER MADRID & BATCHELDER LLP 20300 Stevens Creek Bou levard, Suite 400 Cupertino , CA 95014 Telep ho ne: [phone] Facsimile: [phone] WILLIAM GAEDE III (pro hac vice) McDERMOTT WILL & EMERY 3150 Po rter Drive Palo Alt o, CA 94304 Telep ho ne: [phone] Facsimile: [phone] KEVIN M. FLOWERS (pro hac vice) MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago IL 60606 Telep ho ne: [phone] Facsimile: [phone]

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CERTIFICATE OF SERVICE I hereby cert ify that this document , filed through the ECF system will be sent electronically to the regist ered participants as identified on the Notice o f Electronic Filing and paper copies will be sent to those indicated as o n-registered participants.

/s/ Patricia R. Rich Patricia R. Rich