ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC. et al v. WATSON LABORATORIES, INC. et al

Filing 234

OPINION & ORDER denying 209 Motion in Limine; denying 210 Motion in Limine; denying 211 Motion in Limine. Signed by Judge Stanley R. Chesler on 1/30/12. (dc, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiffs,
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v.
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WATSON LABORATORIES, INC. et al. :
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Defendants.
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JANSSEN PHARMACEUTICALS, INC.
et al.,

Civil Action No. 08-5103 (SRC)

OPINION & ORDER

CHESLER, U.S.D.J.
This matter comes before the Court on three motions in limine by Defendants Lupin
Pharmaceuticals, Inc. and Lupin Limited (collectively, “Lupin”): 1) the motion to exclude
evidence of unexpected results of Ortho Tri-Cyclen Lo; 2) the motion to exclude duplicative
expert testimony; and 3) the motion to exclude evidence of alleged commercial success of Ortho
Tri-Cyclen Lo. For the reasons stated below, the motions will be denied.
As to the motion in limine to exclude evidence of unexpected results of Ortho Tri-Cyclen
Lo, Lupin contends that Plaintiffs are likely to offer “a scientifically unsound collection of data,
drawn from two studies.” (Defs.’ Br. 2.) Lupin argues that such evidence is unreliable,
prejudicial, and confusing, and that it should be barred under Federal Rule of Evidence 403. Yet
the gist of Lupin’s criticisms of the evidence is that the underlying studies do not support the
assertions made to the PTO about them by the applicant. This argument appears unrelated to
Rule 403, which states: “The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Lupin here has made no demonstration that the evidence presents any of these
dangers. Rather, it is Lupin that has confused the issues here. Lupin raises issues of scientific
flaws and lack of scientific reliability as if it had made a Daubert motion under Rule 702
regarding expert testimony – yet it has not done so.1 Lupin has made no showing that the studies
alleged to show unexpected results are confusing, misleading, or a waste of time. This in limine
motion under Rule 403 is denied.
As to the motion to exclude duplicative expert testimony, Lupin points to three expert
reports submitted by Plaintiffs and contends that they are largely duplicative. This Court need
not address this issue now. It will be more efficient to address this at trial. Should Plaintiffs
begin to present duplicative expert testimony at trial, this Court will welcome a motion to
exclude the duplicative evidence. The motion to exclude duplicative expert testimony is denied
without prejudice.
As to the motion to exclude evidence of alleged commercial success of Ortho Tri-Cyclen

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Even if this motion challenged the reliability of the opinion of a scientific expert, this
Court must still follow Third Circuit law:
A judge frequently should find an expert’s methodology helpful even when the
judge thinks that the expert’s technique has flaws sufficient to render the
conclusions inaccurate. He or she will often still believe that hearing the expert’s
testimony and assessing its flaws was an important part of assessing what
conclusion was correct and may certainly still believe that a jury attempting to
reach an accurate result should consider the evidence.
In re Paoli R.R. Yard Pcb Litig., 35 F.3d 717, 744-745 (3d Cir. 1994).
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Lo, Lupin contends that such evidence is only weakly probative as a secondary consideration in
the obviousness inquiry because of the presence of several blocking patents. Lupin argues that,
given how weakly probative such evidence is, it would be a waste of time to spend days of trial
time on this issue. This Court has not been persuaded that this provides a good reason to exclude
all evidence of commercial success at this juncture. Lupin does not allege that the evidence is
entirely irrelevant, merely that it is not important enough to warrant the use of days of trial time
to present it. This is a decision better made during trial: should Lupin believe during trial that
time is being wasted on the presentation of evidence of little probative value, this Court will
welcome a motion raising that issue. The motion to exclude evidence of alleged commercial
success of Ortho Tri-Cyclen Lo is denied without prejudice.
For the reasons stated above,
IT IS on this 30th day of January, 2012,
ORDERED that Lupin’s motions in limine (Docket Entry Nos. 209, 210, and 211) are
DENIED.

s/ Stanley R. Chesler
Stanley R. Chesler, U.S.D.J.

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