ChemImage Corporation v. Johnson & Johnson et al

Filing 157

MEMORANDUM OPINION AND ORDER re: 126 MOTION in Limine . filed by ChemImage Corporation. Motion in Limine #1 (to preclude evidence and argument concerning purported breaches not identified in the March 6, 2023 Termination Letter): T he Court sees no need to decide in advance of trial whether and to what extent it should consider Defendants' arguments and evidence of ChemImage's allegedly unidentified breaches in light of the terms of the Termination Letter. According ly, motion in limine #1 is DENIED. Motion in Limine #2 (to preclude testimony of Defendants' rebuttal experts): Although rebuttal is not limited to direct contradiction, United States v. Barrow, 400 F.3d 109, 120 (2d Cir. 2005), a rebuttal repor t is indeed limited to the same subject matter identified by another party, Fed. R. Civ. P. 26; see United States v. Tejada, 956 F.2d 1256, 1266 (2d Cir. 1992); McBeth v. Porges, No. 15-CV-2742 (JMF), 2018 WL 5997918, at *7 (S.D.N.Y. Nov. 15, 2018). In ruling on the merits, the Court will adhere to these principles and disregard any testimony by Defendants' rebuttal experts that is not proper. Once again, however, it sees no need to resolve the parties' arguments in advance of trial. Accordingly, motion in limine #2 is DENIED as well. Motion in Limine #3 (to preclude the testimony of Rocco De Bernardis): Defendants provide no justification for their failure to list Mr. De Bernardis in their Rule 26 disclosures. That said, the Co urt declines to adopt the drastic remedy of preclusion, primarily because, in the circumstances of this case a bench trial in which the parties were required weeks ago to submit the direct testimony of their witnesses by declaration ChemImage canno t demonstrate prejudice. 3DT Holdings LLC v. Bard Access Sys. Inc., No. 17-CV-5463 (LJL), 2022 WL 1569493, at *3 (S.D.N.Y. May 17, 2022) (internal quotation marks omitted); see id. at *4 ([I]n this case, unlike in a jury trial or in a bench trial whe re direct testimony is not taken by declaration, Plaintiff has a copy of Burnside's direct testimony, and it still has not identified any documents that it does not now have and would have requested had it known that Burnside would be a witness or any questions it would have asked in deposition of another witness that it did not ask.). In any event, if any prejudice did exist, it is mitigated by permitting [ChemImage] to take [De Bernardis's] deposition pretrial, which the Court now or ders. Id. at *4. Accordingly, motion in limine #3 is DENIED on the condition that Mr. De Bernardis is made available for a deposition before trial on a date reasonably selected by ChemImage's counsel. In light of Defendants' violation of Ru le 26, Defendants shall pay the reasonable costs (but not attorney's fees) associated with the deposition. See, e.g., Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 162 (S.D.N.Y. 2012) (shifting cer tain discovery costs to Plaintiffs, so as to avoid burdening Defendants with costs they would not have incurred, but for Plaintiffs' non-compliance with the discovery rules under Rule 26 and collecting cases). Motion in Limine #4 (to preclude ce rtain testimony of Joseph Corrigan): Motion in limine #4 is DENIED, substantially for the reasons set forth in Defendants' opposition. See ECF No. 141 (Defs.' Opp'n), at 22-26. Motion in Limine #5 (to preclude Defendants from introduc ing the deposition testimony of Adam Saltman): ChemImage is correct that deposition testimony is only a substitute, not to be resorted to if the witness can appear in person. Banks v. Yokemick, 144 F. Supp. 2d 272, 288 (S.D.N.Y. 2001). Further, Defen dants are flat wrong in arguing that Mr. Saltman's testimony is admissible under Rule 801(d)(2) of the Federal Rules of Evidence, see Defs.' Opp'n 26-28, as he was not a ChemImage employee at the time of his deposition, see ECF No. 148 , at 11; see also, e.g., Vista Food Exch., Inc. v. Comercial De Alimentos Sanchez S de R L de C.V., 627 F. Supp. 3d 408, 418 (S.D.N.Y. 2022) (The hearsay exclusion for opposing party statements under Rule 801(d)(2) of the Federal Rules of Evidence on ly applies when the statement is, among other things, made by the opposing party itself or '[its] agent or employee on a matter within the scope of that relationship and while it existed.' (quoting Fed. R. Evid. 801(d)(2)). Accordingly, mot ion in limine #5 is GRANTED. That is, assuming that Mr. Saltman appears as a witness at trial, Defendants are precluded from using his deposition (except for impeachment purposes) in their case-in-chief. The Clerk of Court is directed to terminate ECF No. 126. SO ORDERED. (Signed by Judge Jesse M. Furman on 3/5/2025) (jjc)

Case 1:24-cv-02646-JMF

Document 157

Filed 03/05/25

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CHEMIMAGE CORPORATION,
:
:
Plaintiff,
:
:
-v:
:
JOHNSON & JOHNSON et al.,
:
:
Defendants.
:
:
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Page 1 of 2

24-CV-2646 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
The bench trial in this case, brought by ChemImage Corporation (“ChemImage”) against
Johnson & Johnson (“J&J”) and Ethicon, Inc. (“Ethicon”), and familiarity with which is assumed, is
scheduled to begin on March 17, 2025. See ECF No. 123. In advance of trial, ChemImage has filed
five motions in limine. See ECF No. 126. The Court rules on them as follows:
•

Motion in Limine #1 (to preclude evidence and argument concerning purported
breaches not identified in the March 6, 2023 Termination Letter): The Court sees
no need to decide in advance of trial whether and to what extent it should consider
Defendants’ arguments and evidence of ChemImage’s allegedly unidentified breaches in
light of the terms of the Termination Letter. Accordingly, motion in limine #1 is
DENIED.

•

Motion in Limine #2 (to preclude testimony of Defendants’ rebuttal experts):
Although “rebuttal is not limited to direct contradiction,” United States v. Barrow, 400
F.3d 109, 120 (2d Cir. 2005), a rebuttal report is indeed limited to “the same subject
matter identified by another party,” Fed. R. Civ. P. 26; see United States v. Tejada, 956
F.2d 1256, 1266 (2d Cir. 1992); McBeth v. Porges, No. 15-CV-2742 (JMF), 2018 WL
5997918, at *7 (S.D.N.Y. Nov. 15, 2018). In ruling on the merits, the Court will adhere
to these principles and disregard any testimony by Defendants’ rebuttal experts that is
not proper. Once again, however, it sees no need to resolve the parties’ arguments in
advance of trial. Accordingly, motion in limine #2 is DENIED as well.

•

Motion in Limine #3 (to preclude the testimony of Rocco De Bernardis): Defendants
provide no justification for their failure to list Mr. De Bernardis in their Rule 26
disclosures. That said, the Court declines to adopt the “drastic remedy” of preclusion,
primarily because, in the circumstances of this case — a bench trial in which the parties

Case 1:24-cv-02646-JMF

Document 157

Filed 03/05/25

Page 2 of 2

were required weeks ago to submit the direct testimony of their witnesses by declaration
— ChemImage cannot demonstrate prejudice. 3DT Holdings LLC v. Bard Access Sys.
Inc., No. 17-CV-5463 (LJL), 2022 WL 1569493, at *3 (S.D.N.Y. May 17, 2022)
(internal quotation marks omitted); see id. at *4 (“[I]n this case, unlike in a jury trial or
in a bench trial where direct testimony is not taken by declaration, Plaintiff has a copy of
Burnside’s direct testimony, and it still has not identified any documents that it does not
now have and would have requested had it known that Burnside would be a witness or
any questions it would have asked in deposition of another witness that it did not ask.”).
“In any event, if any prejudice did exist, it is mitigated by permitting [ChemImage] to
take [De Bernardis’s] deposition pretrial, which the Court now orders.” Id. at *4.
Accordingly, motion in limine #3 is DENIED on the condition that Mr. De Bernardis is
made available for a deposition before trial on a date reasonably selected by
ChemImage’s counsel. In light of Defendants’ violation of Rule 26, Defendants shall
pay the reasonable costs (but not attorney’s fees) associated with the deposition. See,
e.g., Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 280
F.R.D. 147, 162 (S.D.N.Y. 2012) (shifting “certain discovery costs to Plaintiffs, so as to
avoid burdening Defendants with costs they would not have incurred, but for Plaintiffs’
non-compliance with the discovery rules” under Rule 26 and collecting cases).
•

Motion in Limine #4 (to preclude certain testimony of Joseph Corrigan): Motion in
limine #4 is DENIED, substantially for the reasons set forth in Defendants’ opposition.
See ECF No. 141 (“Defs.’ Opp’n”), at 22-26.

•

Motion in Limine #5 (to preclude Defendants from introducing the deposition
testimony of Adam Saltman): ChemImage is correct that “deposition testimony is only
a substitute, not to be resorted to if the witness can appear in person.” Banks v.
Yokemick, 144 F. Supp. 2d 272, 288 (S.D.N.Y. 2001). Further, Defendants are flat
wrong in arguing that Mr. Saltman’s testimony is admissible under Rule 801(d)(2) of the
Federal Rules of Evidence, see Defs.’ Opp’n 26-28, as he was not a ChemImage
employee at the time of his deposition, see ECF No. 148, at 11; see also, e.g., Vista Food
Exch., Inc. v. Comercial De Alimentos Sanchez S de R L de C.V., 627 F. Supp. 3d 408,
418 (S.D.N.Y. 2022) (“The hearsay exclusion for opposing party statements under Rule
801(d)(2) of the Federal Rules of Evidence only applies when the statement is, among
other things, made by the opposing party itself or ‘[its] agent or employee on a matter
within the scope of that relationship and while it existed.’” (quoting Fed. R. Evid.
801(d)(2)). Accordingly, motion in limine #5 is GRANTED. That is, assuming that Mr.
Saltman appears as a witness at trial, Defendants are precluded from using his deposition
(except for impeachment purposes) in their case-in-chief.

The Clerk of Court is directed to terminate ECF No. 126.
SO ORDERED.
Dated: March 5, 2025
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

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