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

Filing 863

MOTION in Limine No. 15: Exclude Testimony of Roche's In-House Counsel George Johnston Because HisTestimony is Irrelevant and Roche Failed to Identify His Testimony Pursuant to Fed. R. Civ. P. 26(a) During Discovery by Amgen Inc..(Gottfried, Michael)

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

Doc. 863

Case 1:05-cv-12237-WGY

Document 863

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. PLAINTIFF AMGEN'S MOTION IN LIMINE NO. 15: EXCLUDE TESTIMONY OF ROCHE'S IN-HOUSE COUNSEL GEORGE JOHNSTON BECAUSE HIS TESTIMONY IS IRRELEVANT AND ROCHE FAILED TO IDENTIFY HIS TESTIMONY PURSUANT TO FED.R.CIV.P. 26(a) DURING DISCOVERY Pursuant to FRE 402 and 403, 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 presenting at trial testimony of Roche's witness, George Johnston, in-house counsel for Hoffmann-La Roche, Inc. Mr. Johnston should be precluded from testifying at trial because his testimony would not be relevant to any facts or issues in this case and because Roche has not disclosed him as a witness or any evidence pertinent to his testimony during discovery. Mr. Johnston was not identified by Roche as a potential witness in its mandatory disclosures pursuant to Fed.R.Civ.P 26(a). Pursuant to Fed.R.Civ.P 26(a) and 37(c)(1), the testimony of a witness presented at trial should be limited to that which was identified during discovery. Also, Roche refused to produce any opinions or the results of any patent investigations in response to Amgen discovery requests. Roche cannot now introduce opinion or

Civil Action No. 05 CV 12237 WGY

Dockets.Justia.com

Case 1:05-cv-12237-WGY

Document 863

Filed 08/24/2007

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investigation testimony from its in-house counsel, Mr. Johnston, after having denied Amgen discovery on this topic. Amgen requests that this Court enter an order precluding Mr. Johnston from testifying at trial. In support of this motion, Amgen submits a brief.

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Case 1:05-cv-12237-WGY

Document 863

Filed 08/24/2007

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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