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

Filing 860

MOTION in Limine No. 14: Exclude PEG-EPO Experiments Conducted by Cords and Criticism of Amgen's Failure to Test Peg-Epo Based Upon Roche's Failure to Produce a Sample of PEG-EPO by Amgen Inc..(Gottfried, Michael)

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

Doc. 860

Case 1:05-cv-12237-WGY

Document 860

Filed 08/24/2007

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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. AMGEN'S MOTION IN LIMINE NO. 14: EXCLUDE PEG-EPO EXPERIMENTS CONDUCTED BY CORDS AND CRITICISM OF AMGEN'S FAILURE TO TEST PEG-EPO BASED UPON ROCHE'S FAILURE TO PRODUCE A SAMPLE OF PEG-EPO 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 referring to or introducing into evidence testing performed by Roche's consultant, Dr. Cords, comparing Roche's Peg-EPO and EPO because, despite discovery requests and assurances that they would provide Amgen with a sample of Peg-EPO, Roche never produced any samples of Peg-EPO to Amgen. Dr. Cords ran certain tests comparing the in vivo biological activity of deglycosylated Peg-EPO and EPO, and then described the experiments and results in his expert report and a declaration, which several of Roche's expert witnesses cited in their expert reports to support their noninfringement opinions. Without a sample of Peg-EPO, Amgen was unable to replicate these tests and was limited in its ability to challenge Cords's test results. Roche should not be

Civil Action No. 05 CV 12237 WGY

Dockets.Justia.com

Case 1:05-cv-12237-WGY

Document 860

Filed 08/24/2007

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allowed to rely on its Peg-EPO test results at trial, or criticize Amgen's experts for failing to test a sample of Peg-EPO, after it promised to produce Peg-EPO to Amgen and then did not. Roche also refused to produce a non-redacted copy of the protocol run by Dr. Cords for his experiments. Roche should not be permitted to introduce such experiments, while denying Amgen discovery of the complete test protocol used by Dr. Cords. Accordingly, Amgen requests that this Court preclude Roche from (a) referring or relying upon any experiments performed by Dr. Cords and (b) referring to Amgen's failure to test Roche's Peg-EPO product. In support of this motion, Amgen submits a brief with an accompanying declaration and exhibit thereto.

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Respectfully Submitted, Date: August 24, 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