I will speak a truth that many of you have suspected. Sometimes we (well, I) pick a case just because it has a fun name. My original post today was about HQ Specialty Pharma Corp. v. Fresenius Kabi USA, LLC, C.A. No. 21-1714-MN. Honestly the case was too fact intensive to easily convert to a general interest blog post. On the other hand, it contained a great deal of discussion of the testimony of a New Jersey Pharmaceutical executive named Mr. Pizza.
The whole thing ended up being just jokes and out of context slices ("Mr. Kelly . . . doubted whether Mr. Pizza 'had any knowledge of the [prior art] references'") and I never managed to work in the ruling, so Andrew made me take it down. I just wanted you to know what could have been. Please write your congressperson or Andrew to complain.
Fortunately, last week we got another interesting opinion from Judge Bryson, ruling on a series of motions in limine in Prolitec, Inc. v. ScentAir Technologies, LLC, C.A. No. 20-984-WCB, D.I. 423 (D. Del. Mar. 28, 2025).
The first interesting note here is that all of the 4 motions filed by the parties were granted, which must be some kind of record. But for my money, the most interesting dispute revolved around the deposition testimony of Scentair's expert.
The expert had obviously submitted a report. During his deposition, he'd answered several questions in ways that went beyond the scope of his report. Normal Pennypack stuff.
The wrinkle is that Prolitec, rather than Scentair, elicited the testimony. Scentair thus argued that Prolitec couldn't complain since their own questions brought the issue into the case. Judge Bryson, however, disagreed and held that the expert would be held to the opinions in his report and could not testify as to the statements made in his deposition that went beyond it:
In ScentAir’s view, Prolitec should not have asked these “risky” questions. But the onus is on ScentAir to disclose all its expert’s opinions in the expert’s report. Given the disclosure requirements of Rule 26, it was not unreasonable for Prolitec to prepare for and explore topics in the deposition with the assumption that Mr. Dezmelyk would constrain his answers to the opinions in his report and reasonable elaborations thereof; otherwise, the disclosure rules would be meaningless.
Id. at 5 n.1.
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