Last week, Judge Andrews addressed a serious of motions in limine in Astrazeneca AB v. Zydus Pharms. (USA) Inc., C.A. No. 18-664-RGA (D. Del.). These rulings are often interesting; here, Judge Andrews excluded some former expert testimony as hearsay, rejecting the idea that the testimony was a party admission:
Defendant seeks to exclude testimony and evidence that relate to positions it and its experts took in relation to the patent-in-suit (as prior art) in District of New Jersey litigation involving other patents. . . . The evidence, which is described as trial transcripts, expert reports, invalidity contentions, proposed findings of fact and conclusions of law, and “support documents” (consisting altogether of about fourteen proposed exhibits) is asserted to be irrelevant, hearsay, and in any event excludable under Rule 403. . . . .
Hearsay . . . applies to the trial transcripts, expert reports, the court’s findings of fact and conclusions of law, and perhaps to the “support documents,” whatever they may be. On the other hand, invalidity contentions and proposed findings of facts and conclusions of law (PTX0154 & PTX0155) are statements of Defendant’s authorized agents within the scope of their agency. They are admissions. I think the law is that sponsored expert testimony is not attributed to its sponsor, and it does not become an adoptive admission simply because the party advocates for its acceptance in a different case. . . . Thus, the motion in limine is GRANTED as to trial transcripts, expert reports, and the New Jersey court’s opinion . . . .
This brings to mind the Judge Andrews order we discussed in December, where Judge Andrews attributed an expert's knowledge to a party to support striking some of their invalidity arguments. The two opinions do not conflict, though: the first attributes an expert's knowledge to a party; the second declines to attribute the expert's statements to a party.
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