We've recently flagged Judge Noreika's evolving practice of sometimes requiring parties to seek leave before filing summary judgment or Daubert motions. It doesn't seem to happen in every case, and so far the Court has often granted leave for at least one summary judgment or Daubert motion in each case. But it's worth keeping in mind if you have a case before Judge Noreika.
Yesterday, we saw a new variation on Judge Noreika's previous orders on this issue. She specifically noted that the trial was a bench trial (it is an ANDA case):
ORAL ORDER re . . . Stipulation and Proposed Order - WHEREAS, the parties have submitted a proposed stipulation that includes, inter alia, new pre-trial deadlines that extend Daubert briefing but keep the existing pretrial conference and trial dates; WHEREAS, should this case proceed to trial, it will be a bench trial . . . ; WHEREAS, "[w]hen the role of the gatekeeper to admit or exclude evidence (the judge) and the role of the factfinder to assess and weigh the evidence... (the jury) are one and the same, the judge who becomes the factfinder as well as the gatekeeper... should not be required to waste judicial time" In re Unisys, 173 F.3d 145, 155-58 (3d Cir. 1999); and WHEREAS, the Court can better address Daubert issues in context at trial when the Court can hear testimony and better understand the bases for the experts' opinions. THEREFORE, IT IS HEREBY ORDERED that, should any party wish to file Daubert motions, they shall file a letter seeking permission to do so. Opening letter briefs shall be no longer than three (3) pages and shall be filed with the Court on or before 3/31/2023 [two and a half months before trial]. Answering letter briefs shall be no longer than three (3) pages and shall be filed with the Court no later than seven (7) days after the filing of the opening letter briefs. No replies shall be filed. Unless the Court grants leave for additional letters to be filed, each side shall present all grounds on which it seeks permission to file Daubert motions in its single opening letter brief.
Novartis Pharmaceuticals Corporation v. Sun Pharmaceutical Industries Ltd., C.A. No. 21-1656-MN, D.I. 62 (D. Del. July 27, 2022).
What triggered this order? It was a stipulation amending the case schedule. The trial is set for June 12, 2023, and the stipulation moved reply Daubert briefs back by 11 days from May 8, 2023, to May 19, 2023—leaving less than a month between reply Daubert briefs and trial.
Is this an indication that Judge Noreika will adopt this procedure in every bench trial? Probably not, at least not yet. But I would definitely think twice before filing a stipulation seeking an extension on the Daubert or summary judgment reply brief deadlines in a Judge Noreika case.
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