ASTRAZENECA LP et al v.BREATH LIMITED et al

Filing 1074

MEMORANDUM ORDER: ORDERED that the Court RESERVES decision on Defendants' motion to exclude the expert report of Mr. Mathers; and it is further ORDERED that the Court will hear Mr. Mathers' testimony and Defendants' objections as set forth in their papers, including timeliness, are preserved for the record. Signed by Judge Renee Marie Bumb on 10/10/2014. (tf, )

[Dkt. Ent. 1029]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ASTRAZENECA LP and ASTRAZENECA
AB,
Plaintiffs,
Consolidated Civil Action No.
08-1512 (RMB/AMD)

v.
BREATH LIMITED,

MEMORANDUM ORDER

Defendant.
ASTRAZENECA LP and ASTRAZENECA
AB,
Plaintiffs,
v.
APOTEX, INC. and APOTEX CORP.,
Defendants.
ASTRAZENECA LP and ASTRAZENECA
AB,
Plaintiffs,
v.
SANDOZ, INC.,
Defendant.
ASTRAZENECA LP and ASTRAZENECA
AB,
Plaintiffs,
v.
WATSON LABORATORIES, INC.,
Defendant.

1

This matter comes before the Court upon Defendants’ motion
to strike the reply expert report of Peter R. Mathers. (Dkt.
Ent. 1029.) Defendants seek to exclude Mr. Mathers’ report on
grounds that his expert report was untimely and his proposed
testimony fails to satisfy Federal Rules of Evidence 702 and
403.
On September 26, 2014, this Court issued an Order to Show
Cause as to why AstraZeneca “should not be judicially estopped
from taking a position that appears to be directly contradicted
by AstraZeneca’s prior position before this Court (and which
this Court believed to be undisputed).” (Dkt. Ent. 1052 at 16.)
AstraZeneca filed a timely response to that Order to Show Cause.
Judicial estoppel is an extraordinary remedy and should be
applied only in a case where there has been an affront to the
Court’s integrity. See Montrose Med. Grp. Participating Sav.
Plan v. Bulger, 243 F.3d 773, 777-78 (3d Cir. 2001). As the
Court held on the record, there was no bad faith on the part of
AstraZeneca. AstraZeneca has clarified its comments as going to
the issue of motivation – which AstraZeneca has now conceded.
AstraZeneca has disputed, however, that persons of skill in the
art, as well as the FDA, understood that the 1997 Proposed Rules
did not cover suspensions. Thus, the Court will not judicially
estop AstraZeneca from asserting this position at this trial.

2

Turning to the admissibility of the Mathers report, the
Court will continue to reserve decision but will permit the
testimony at trial. Although the Court performs a “gatekeeping”
function regarding expert testimony, federal courts have held
that this function “is relaxed in the context of a bench trial
because a court is better equipped than a jury to weigh the
probative value of expert evidence.

See United States v. Brown,

415 F.3d 1257, 1269 (11th Cir. 2005) (‘There is less need for
the gatekeeper to keep the gate when the gatekeeper is keeping
the gate only for himself.’).” Warner Chilcott Labs. Ireland
Ltd. v. Impax Labs., Inc., 2012 WL 1551709, at *23 (D.N.J. April
30, 2012).
[A] district court conducting a bench trial may admit
evidence during the trial, subject to the
understanding that the court may later exclude it or
disregard it if it turns out not to meet the standards
for reliability and relevancy established by Rule 702.
See In re Salem, 465 F.3d 767, 777 (7th Cir.2006)
(“[W]here the factfinder and the gatekeeper are the
same, the court does not err in admitting the evidence
subject to the ability later to exclude it or
disregard it if it turns out not to meet the standard
of reliability established by Rule 702.”). “[T]he
court in a bench trial need not make reliability
determinations before evidence is presented,
[however], the determinations must still be made at
some point.”
Id. (citations omitted); see also Seaboard Lumber Co. v. U.S.,
308 F.3d 1283, 1302 (Fed. Cir. 2002) (“While these concerns are
of lesser import in a bench trial, where no screening of the
factfinder can take place, the Daubert standards of relevance
3

and reliability for scientific evidence must nevertheless be
met.”); Suter v. General Acc. Ins. Co. of Am., 424 F.Supp.2d
781, 790 (D.N.J. 2006) (“Courts have also ‘recognized that in
the context of a bench trial, evidence should not be excluded
under Rule 403 on the grounds that it is unfairly prejudicial,
because the Court is capable of assessing the probative value of
the article and excluding any arguably improper inferences.’”
(citations omitted)).
ACCORDINGLY, FOR THESE REASONS, IT IS on this, the 10th day
of October 2014, hereby
ORDERED that the Court RESERVES decision on Defendants’
motion to exclude the expert report of Mr. Mathers; and it is
further
ORDERED that the Court will hear Mr. Mathers’ testimony and
Defendants’ objections as set forth in their papers, including
timeliness, are preserved for the record.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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