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

Filing 782

DECLARATION of Deborah E. Fishman in Support of Amgen's Opposition to Defendants' Motion to Preclude Testimony from Amgen's Belatedly Disclosed Fact Witnesses by Amgen Inc.. (Attachments: #1 Exhibit 1#2 Exhibit 2#3 Exhibit 3#4 Exhibit 4#5 Exhibit 5#6 Exhibit 6#7 Exhibit 7#8 Exhibit 8#9 Exhibit 9#10 Exhibit 10#11 Exhibit 11#12 Exhibit 12#13 Exhibit 13#14 Exhibit 14#15 Exhibit 15#16 Exhibit 16#17 Exhibit 17#18 Exhibit 18#19 Exhibit 19#20 Exhibit 20#21 Exhibit 21#22 Exhibit 22#23 Errata 23#24 Exhibit 24#25 Exhibit 25#26 Exhibit 26)(Gottfried, Michael)

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

Doc. 782 Att. 14

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EXHIBIT 14

Fishman Decl. to Amgen's Opp to Motion to Preclude Testimony from Amgen's Belated Disclosed Fact Witnesses - Public

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LIVENOTE I World Service"
Worldwide Deposition Reporting & legal Videography

United States District Court District Of Massachusetts **Confidential Pursuant To Section 5(c) of the Amended Protective Order** Deposition Of

Certified Copy

0

Stuart H. Orkin, M.D. (Exhibits Have Been Bound Separately) June 5, 2007 Amgen, Inc .
V.

F . Hoffmann-La Roche, LTD
A LiveNote World Service Transcript Reported by CP, Fairner Arsenault Brock, LLC LiveNote Inc . · 221 Main Street, Suite # 1250, San Francisco, California 94105 ·1-800-LIVENOTE

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Orkin, Stuart H . M .D . CONFIDENTIAL

CONFIDENTIAL Exhibits 1-21 Volume 1, Pages 1-236

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No . 05 Civ . 12237 WGY ---------- -------AMGEN INC .,
vs .

Plaintiff

F . HOFFMANN-LA ROCHE LTD, ROCHE DIAGNOSTICS GmbH, and HOFFMANN-LA ROCHE INC ., Defendants

VIDEOTAPED DEPOSITION OF STUART H . ORKIN, M .D . Tuesday, June 5, 2007,9 :13 a .m . Taken at : Bromberg & Sunstein 125 Summer Street= Boston, Massachusetts *** TRANSCRIPT DESIGNATED CONFIDENTIAL *** **SUBJECT TO A PROTECTIVE ORDER** FARMER ARSENAULT BROCK LLC Reporting For : LiveNote World Service 221 Main Street, Suite 1250 San Francisco, California 94105 Phone : [phone] Fax : [phone] Reported by : JANIS T . YOUNG, RDR/CRR

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APPEARANCES : Mark H . Izraelewicz, Esq . Kevin M . Flowers, Ph .D ., Esq . Marshall, Gerstein & Borun LLP 233 South Wacker Drive 6300 Sears Tower Chicago, Illinois 60606-6357 Fax [phone] m izraelewicz@marshallip .co m k flowers@marshallip .co m for Plaintiff Vladimir V . Drozdoff, Esq Kaye Scholer LLP 425 Park Avenue New York, New York 10022-3598 212-836-7629 Fax [phone] v drozdoff@kayescholer .co m for Defendants

ALSO PRESENT : Robert Alan Hess, Ph .D ., Patent Agent Bromberg & Sunstein LLP Jared Drewniak, Videographer

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Orkin, Stuart H . M .D. CONFIDENTIAL 1 what's been marked as Orkin Exhibit 5 and tell me if you recognize this document . A . Yes . I recognize this as the expert report I submitted in I believe the year 2000 . I can check the signature page and see if that date's correct . Yes, January 2000 . Q . And if you direct your attention to Page 15 of the report, bearing Bates No . AM-ITC 00857981, is that your signature on that page? A . That is my signature . Q . Doctor, is there anything in this report that you're aware of today as being inaccurate or not stating the opinions that you had at the time you signed that report? A . Well, I'd have to read through the complete report, but as far as I know, there's nothing that's inaccurate in the report as of the date I signed it . MR . DROZDOFF : I'd like the court

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reporter to mark the next exhibit as Orkin Exhibit 6 . It appears to be a document . It's entitled Video Deposition of Stuart H . Orkin, M .D . ; it bears Bates range AM-ITC 00920915 through 00921111 . (Marked, Exhibit Orkin 6 .) Q . Doctor, I'd like to have you take a look at that and tell me if you recognize this document-

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Orkin, Stuart H. M.D. CONFIDENTIAL 1 A. Yes . I believe this is a transcript of the

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deposition in 2000 . Q . And when you testified in this deposition, you were under oath -A . I believe I was . Q. -- just like you are today?

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A . I believe I was . Q . And you were prepared to give truthful and accurate testimony? A . I was . Q . And, Doctor, I'd like to have you take a look at Page 5 of your expert report from the TKT case, which bears Bates No . AM-ITC 00857971 . A . I have that page . Q . And let me direct your attention to Paragraph 10 . You state, "I was the project leader

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on a research project entitled 'Molecular Aspects of Globin Gene Switching and Cloning of Erythropoietin Sequence' which was funded under a grant to Dr . David G . Nathan from the National Institute of Health ." A . That's correct ; I see that . Q . And can you explain what that research project was? A . This research project was a part of a

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actually a criminal offense, isn't it? MR . IZRAELEWICZ : Objection . lawyer . A. I don't know . Well, Doctor, I'd like you -- you see the He's not a

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Q.

little Panel 18 where it says Certification and Acceptance? A. Okay, yes . I can barely read it .

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that -A.

Right, but can you read it enough to read "The best of my knowledge" -The last sentence, "A willfully false I see that . Do you see that? So this program project

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certification is a criminal offense"?

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grant was certified by a representative of Children's Hospital as being true and complete? A. I presume so . And you didn't have any reason to believe

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Q.

that this application was true and complete with respect to your part of the application? A. I think it was true and complete . MR . IZRAELEWICZ : Objection, mischaracterizing the document, "true and complete .

Q.

Doctor, I'd like to have you turn to Orkin

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Exhibit 6 .

It's a transcript of your deposition in

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the TKT case, and I'd like to direct your attention to Page 70 of your deposition . Can you go, please, to Line 8? A . I see that . Q . And this was testimony you gave under oath, wasn't it? A . It was . Q . And you were asked in this deposition, question : "Did you agree with the majority of the site visit committee in 1981 that there was a reasonable chance of success in your attempts to clone erythropoietin?" Do you see that? A . Yes . Q . And you answered, "Well, I think if we didn't think there was a reasonable chance of success, we never would have embarked on the experiments . Doesn't mean certainty, though ." Is that your answer? A . That's my answer . Q . And the only qualification you made as to a reasonable chance of success was that it doesn't mean certainty? MR . IZRAELEWICZ : Objection,

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mischaracterizes his testimony . A. As I said -- I think I answered this previously -- what a chance of success is to one person can be different than another . Q . Well, at your deposition here, you said it doesn't mean certainty, right? A . That's right . That's, 100 percent certainties . Anything in between could be a reasonable chance of success . As I said before, if I thought that the benefit to science or to the field was sufficient, I would consider a few percent a reasonable chance of success for the effort involved . I don't know what the legal definition is, but from a personal standpoint, anything better than zero is reasonable if I think it's important enough . Q . Doctor, do you ever have complete certainty in science? A . Probably not, but you get pretty close . Q . Now, Doctor, in the project that you undertook in connection with your program project grant, your attempt to clone EPO involved not an attempt to clone human erythropoietin, but an it's either 100 percent or zero . Those are the only

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