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

Filing 986

MOTION in Limine No. 23: Exclude Testimony of Daniel Shouval Regarding Erythropoietin-Producing Cell Lines and His Work on EOP MRNA by Amgen Inc..(Gottfried, Michael)

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

Doc. 986

Case 1:05-cv-12237-WGY

Document 986

Filed 09/04/2007

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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'S MOTION IN LIMINE NO. 23: EXCLUDE TESTIMONY OF DANIEL SHOUVAL REGARDING ERYTHROPOIETINPRODUCING CELL LINES AND HIS WORK ON EPO MRNA 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 offering the testimony of Dr. Daniel Shouval on the topics of erythropoietinproducing cell lines and Dr. Shouval's work on EPO mRNA. Dr. Shouval, one of Roche's experts, opined at length in his expert report on the subjects of erythropoietin-producing cell lines and his work on EPO mRNA in the 1980s. During his deposition, however, he refused to answer certain questions regarding erythropoietin-producing cell lines and his work on EPO mRNA on the grounds that he was foreclosed from doing so as a result of being a party to a confidentiality agreement with a third party--the Albert Einstein College of Medicine. Roche has now re-designated Dr. Shouval as a fact witness at the 11th hour in the belief that, if he were merely a fact witness--and not an expert testifying on Roche's behalf--his testimony would be less vulnerable to motions to exclude for failure to answer questions at

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Case 1:05-cv-12237-WGY

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deposition. Dr. Shouval deliberately foreclosed any discovery into erythropoietin-producing cell lines and his work on EPO mRNA. Roche should now not be permitted to ambush Amgen at trial with such testimony, merely because at the last minute it converted its expert to a fact witness. Amgen requests that this Court exclude testimony of Daniel Shouval relating to erythropoietin-producing cell lines and his work in connection with EPO mRNA. In support of this motion, Amgen submits a brief.

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Respectfully Submitted, Date: September 4, 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