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

Filing 832

MOTION in Limine No. 5: Exclude Expert Testimony Regarding Amgen's Replication of Roche's Cell Culture Media by Amgen Inc..(Gottfried, Michael)

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

Doc. 832

Case 1:05-cv-12237-WGY

Document 832

Filed 08/17/2007

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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'S MOTION IN LIMINE NO. 5: EXCLUDE EXPERT TESTIMONY REGARDING AMGEN'S REPLICATION OF ROCHE'S CELL CULTURE MEDIA Plaintiff Amgen Inc. ("Amgen") requests that this Court preclude Defendants F. Hoffmann-La Roche Ltd., Roche Diagnostics GmbH, and Hoffmann-La Roche Inc. (collectively "Roche") from introducing evidence or testimony from a Roche witness, including but not limited to Dr. Flavell, or any cross-examination of any Amgen witness, regarding any difference between the cell culture medium used by Dr. Kolodner to grow Roche's cells and the cell culture medium that Roche says it uses in Germany. Any such difference resulted from Roche's failure to comply with the Court's orders on Amgen's motions to compel production of Roche's cells. Dr. Kolodner could not use the exact medium that Roche says it uses to grow its cells in Germany because, despite its counsel's repeated assurances that Roche would supply its "special" cell culture medium to Dr. Kolodner, Roche never did so (even to this day, despite continued requests by Amgen). Also, Roche delayed sending its instructions as to how Dr. Kolodner could re-create the culture medium until so late in the expert discovery period that it was not possible for Dr. Kolodner to exactly replicate Roche's medium before submitting his

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Case 1:05-cv-12237-WGY

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report. Still further, because Roche had marked the document containing the recipe for making its cell culture medium as "RESTRICTED ACCESS CONFIDENTIAL BLA/IND - LOCKED ROOM ACCESS ONLY," Dr. Kolodner could not simply send the recipe for Roche's medium to a commercial vendor (or to scientists at Amgen) to have the medium custom-formulated. Instead, Dr. Kolodner was forced to supplement a standard, pre-made cell culture medium (called "DMEM/F12") with additional components. Because Roche's failure to comply with its discovery obligations resulted in Dr. Kolodner's inability to exactly replicate the cell culture medium that Roche says its uses to grow its cells in Germany, Amgen requests that this Court preclude Roche from presenting evidence regarding any difference between the cell culture medium used by Dr. Kolodner to grow Roche's cells and the cell culture medium that Roche says it uses in Germany. In support of this motion, Amgen submits a brief with exhibits.

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Respectfully Submitted, Date: August 17, 2007 AMGEN INC., By its attorneys, /s/ Michael R. Gottfried 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]

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]

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CERTIFICATE PURSUANT TO LOCAL RULE 7.1 I certify that counsel for the parties have conferred in an attempt to resolve or narrow the issues presented by this motion and no agreement was reached. /s/ Michael R. Gottfried Michael R. Gottfried

CERTIFICATE OF SERVICE I hereby certify that this document filed through the Electronic Case Filing (ECF) system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as nonregistered participants, on the above date. /s/ Michael R. Gottfried Michael R. Gottfried