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Integra LifeSciences Corp. v. HyperBranch Medical Technology, Inc.

United States District Court, D. Delaware

May 11, 2018

INTEGRA LIFESCIENCES CORP., INTEGRA LIFESCIENCES SALES LL CONFLUENT SURGICAL, INC., and INCEPT LLC, Plaintiffs,
v.
HYPERBRANCH MEDICAL TECHNOLOGY, INC., Defendant.

          MEMORANDUM ORDER

          HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE.

         At Wilmington this 11th day of May, 2018, having reviewed the proposed pretrial order and exhibits to it (D.I. 715) (“PTO”), IT IS HEREBY ORDERED that:

1. Plaintiffs' - Integra LifeSciences Corp., Integra LifeSciences Sales LLC, Confluent Surgical, Inc., and Incept LLC (“Plaintiffs” or “Integra”) - motion in limine (“MIL”) No. 1, to preclude Defendant HyperBranch Medical Technology, Inc. (“Defendant” or “HyperBranch”) from offering evidence and argument regarding non-infringement or invalidity defenses not specifically identified previously is DENIED. The only specific concern Plaintiffs raise is with respect to the Jacobs reference, but the Court has already held that Defendant will be permitted to present evidence and argument related to Jacobs. (See D.I. 601) (denying Integra's motion to strike (D.I. 510); see also D.I. 714) The Court and the parties agree to the general principle that neither side will be permitted to present at trial evidence or argument that has not been timely and properly disclosed. To the extent either side believes the other is violating this principle (no such violation is identified in Plaintiffs' MIL No. 1), it may seek appropriate relief from the Court at trial.
2. Plaintiffs' MIL No. 2, to exclude evidence and argument inconsistent with the Court's claim construction, will be discussed at the pretrial conference (“PTC”), to be held on May 15, 2018. In part, Plaintiffs' MIL No. 2 overlaps with issues also pending before the Court in connection with: (i) Defendants' objections (D.I. 698) to the grant (D.I. 672) of Plaintiffs' motion (D.I. 396) to exclude certain opinion testimony and evidence, and (ii) Defendant's MIL No. 1, all of which the parties shall also be prepared to discuss at the PTC. The Court and the parties agree to the general principle that neither side will be permitted to present at trial evidence or argument that is inconsistent with the Court's claim construction.[1]
3. Plaintiffs' MIL No. 3, to exclude evidence and arguments relating to the Court's pre-trial rulings, is GRANTED. The Court agrees with Plaintiffs that informing the jury of what the Court has ruled prior to trial (other than providing the jury the Court's claim constructions, but not the Court's claim construction opinion or reasoning) would be unfairly prejudicial, confusing, and waste time (given the context that would need to be given to the jury). See generally Nipper v. Snipes, 7 F.3d 415, 418 (4th Cir. 1993) (warning of danger of jury giving undue weight to findings made by judge). The limited, if any, probative value of informing the jury of the Court's rulings on disputes the parties have previously presented is substantially outweighed by these concerns. See Fed. R. Evid. 403. The Court's decision does not preclude either side from cross-examining a witness based on her prior inconsistent statement(s). Nor does the Court's decision today unfairly prejudice Defendant, as the Court will not be permitting any expert to testify in a manner inconsistent with the Court's claim construction (rendering it unnecessary to attempt to persuade the jury that an opinion the Court will permit the jury to hear is somehow inconsistent with the Court's claim construction). The Court's ruling extends to all evidence relating to the PTAB and the IPR, including the PTAB's claim construction, its impact on the Court's claim construction, and the outcome of the IPR. Although relevant (for example, to Defendant's defense to willful infringement), the prejudice and confusion inherent in presenting this evidence to the jury - particularly given the PTAB's different standards - substantially outweighs its probative value. See id.
4. Defendant's MIL No. 1, to exclude evidence and argument inconsistent with the Court's claim construction, will be discussed at the PTC. (See supra ¶ 2 & n.1)
5. Defendant's MIL No. 2, to exclude expert testimony that is outside the scope of an expert's report(s), is GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to any opinion by Plaintiffs' expert Jarosz with respect to damages based on conduct within the United States, as Plaintiffs have not disputed Defendant's contention that Jarosz previously disclosed an opinion only with respect to damages based on conduct outside the United States. The motion is GRANTED with respect to Distefano, who only provided opinions with respect to the '5705 patent, which is no longer at issue. (See, e.g., D.I. 529; see also D.I. 508 (granting summary judgment of non-infringement of “esters” claims of '5705 patent); D.I. 679) Plaintiffs do not contend that Distefano's testimony is relevant to any issue that will be the subject of the trial. The motion is DENIED in all other respects, including with respect to witnesses Rivet and Mays, as to whom Defendant has not articulated a specific objection. The parties and the Court agree to the general principle that no expert will be permitted to testify to opinions that have not been properly and previously disclosed. As the parties have requested (see PTO at 15), the Court will rule at trial on objections that an expert is violating this general principle.
6. Defendant's MIL No. 3, to preclude fact witnesses from providing expert testimony, is DENIED, as Defendant has not persuaded the Court that Plaintiffs intend to run afoul of the general principle that a fact witness may not offer expert testimony. For example, Plaintiffs' Dr. Sawhney, an inventor on a patent-in-suit, will be permitted to provide factual testimony about his patent, including its importance to him, about what he knew about the prior art and that he tried to do something different, and about Plaintiffs' DuraSeal product, which he developed and for which he wanted to obtain a patent. He will not, however, be permitted to opine as to whether Plaintiffs' or Defendants' products are within the scope of the claims as construed by the Court. Should either party believe the other side is seeking to elicit expert testimony from a fact witness, that party may, at trial, seek appropriate relief.

         Having identified additional disputes in the PTO, IT IS FURTHER ORDERED that:

         1. The parties' proposal to present unresolved objections to deposition designations to the Court “no later than midnight two (2) calendar days before the witness is to be called at trial” is REJECTED. Such objections must be presented to the Court no later than 9:00 p.m. two calendar days before the witness is to be called at trial. The parties may revise the deposition deadlines they have agreed to impose on themselves (see PTO at 13-14) in order to meet the Court's deadline.

         2. When a witness is called to testify by deposition at trial, the party calling the witness shall provide the Court with three copies of the transcript (one each for the Judge, Law Clerk, and Court Reporter) of the designations and counterdesignations that will be read or played. (See PTO at 14-15)

         3. The Court ADOPTS Plaintiffs' proposal that exhibits not listed in the PTO may not be admitted at trial unless good cause is shown. (See PTO at 16)

         4. The Court ADOPTS Plaintiffs' proposal that no exhibit will be admitted unless offered into evidence through a witness, who must at least be shown the exhibit. (See PTO at 16)

         5. The Court ADOPTS Plaintiffs' proposal that the evidence admitted shall be limited to the actual evidence ...


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