United States District Court, D. Delaware
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge
matter is before the court on various motions in limine filed
by C R Bard, Inc., and Bard Peripheral Vascular Inc.
(hereinafter collectively referred to as Bard) Filing No.
344-14, Ex. 12, and by AngioDynamics, Filing No. 344-15, Ex.
13. The parties submitted motions/briefs numbering 105 pages.
the motion in limine is an important tool available to the
trial judge to ensure the expeditious and evenhanded
management of the trial proceedings, performing a gatekeeping
function and sharpening the focus for later trial
proceedings, some evidentiary submissions cannot be evaluated
accurately or sufficiently by the trial judge in such a
procedural environment. Jonasson v. Lutheran Child and
Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). A
motion in limine is appropriate for “evidentiary
submissions that clearly ought not be presented to the jury
because they clearly would be inadmissible for any
purpose.” Id. In other instances, it is
necessary to defer ruling until during trial, when the trial
judge can better estimate the impact of the evidence on the
jury. Id. The Eighth Circuit has noted that
“[e]videntiary rulings made by a trial court during
motions in limine are preliminary and may change depending on
what actually happens at trial.” Walzer v. St.
Joseph State Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000).
“Evidentiary rulings, especially ones that encompass
broad classes of evidence, should generally be deferred until
trial to allow for the resolution of questions of foundation,
relevancy, and potential prejudice in proper context.”
See Leonard v. Stemtech Health Scis., Inc.,
981 F.Supp.2d 273, 276 (D. Del. 2013). To the extent that a
party challenges the probative value of the evidence, an
attack upon the probative sufficiency of evidence relates not
to admissibility but to the weight of the evidence and is a
matter for the trier of fact to resolve. i4i
Ltd. Partnership v. Microsoft Corp., 598 F.3d 831,
854 (Fed. Cir. 2010).
in Limine, Filing No. 344-14, Ex. 12
first contends that AngioDynamics is attempting to redefine
certain claim constructions already decided by the court. The
court has previously determined and stated that all
claims/evidence must comport with the claim constructions in
this case. Memorandum and Order, Filing No. 356. Any other
contradictory evidence will not be permitted. If either party
attempts to introduce evidence outside of the claim
construction, the opposing party may object and bring it to
the court's attention at trial.
also contends that Mr. Chad Campbell was originally
designated as a 30(b)(6) witness (designated witness for an
organization). Prior to taking his deposition, AngioDynamics
withdrew Mr. Campbell as an expert. He only joined
AngioDynamics in the summer of 2016, a year after the filing
of this lawsuit. AngioDynamics has now indicated that he is
very likely to be called to testify. It is difficult at this
juncture to determine what Mr. Campbell intends to testify
about and whether Bard was aware of this testimony. The court
will determine this issue as the evidence is presented at
next argues that the testimony of Anthony David Smith should
be confined to facts, because he has not been timely
designated as an expert witness. AngioDynamics argues that
Bard had plenty of time to question Mr. Smith during his
seven-hour deposition. AngioDynamics contends that any
questions regarding his knowledge can be covered in
cross-examination. To the extent that Bard had the
opportunity to question Smith pursuant to Mr. Smith's
designation, the court is inclined to permit that evidence.
However, to the extent that AngioDynamics wants to question
Smith outside of the designation, the court is not likely to
allow expert testimony not disclosed to Bard. The court will
further address these issues as they arise at trial.
next argues that AngioDynamics should be precluded from
introducing argument and evidence that is misleading and
prejudicial and without a factual basis. Bard contends that
AngioDynamics is speculating about motives for filing the
lawsuit and use of certain words like
“monopolies” and “stifle
competition”. The court will not permit the use of
inappropriate words such as monopolize. See
Genzyme Corp. v. Atrium Med. Corp., 315 F.Supp.2d
552, 586 (D. Del. 2004) (citing Jamesbury Corp. v. Litton
Indus. Prods., Inc., 756 F.2d 1556, 1559 (Fed. Cir.
1985)) (noting “use of the word monopoly was
inappropriate, since the use of this word may be
pejorative.”) The terminology used at trial should be
relevant to the case and issues before the court.
Bard argues that AngioDynamics should be precluded from
discussing other cases wherein Bard has sued AngioDynamics.
See e.g., Power Integrations, Inc. v. Fairchild
Semiconductor Int'l, Inc., 2007 WL 7658923, at *1
(D. Del. Sept. 14, 2007) (“The Court concludes that the
potential prejudice to Power Integrations of having
the jury hear that the patents have been called for review by
the PTO outweighs the probative value of the
evidence.”). The court leans towards disallowing this
testimony, but it will take the issue under advisement until
such time as it is going to be mentioned at trial. If it is
relevant evidence related to a claim or defense, the court
will further consider it.
next moves to exclude surveys that it conducted in 2004 and
2005 related to power injection for proof of the matter
asserted, because the results are hearsay. Likewise, to the
extent Dr. Vogelzang's expert testimony relies on these
results, his testimony should also be excluded contends Bard.
The surveys include out of court statements by technicians,
nurses, physicians, and include summaries of responses.
Consequently, they violate Fed. R. Evid. 801, argues
Bard. See also Brokerage Concepts, Inc. v. U.S.
Healthcare, Inc., 140 F.3d 494, 516 n.14 (3d Cir. 1998).
Second, contends Bard, there are no applicable hearsay
exceptions. See, e.g., Pittsburgh Press Club v.
U.S., 579 F.2d 751, 760 (3d Cir. 1978) (reversing the
district court's decision to admit into evidence a survey
that was a summary and distillation of 281 declarations
offered to prove the truth of the matters asserted).
AngioDynamics contends the surveys are admissible as a
non-hearsay party admission under Fed.R.Evid. 801(2)(A).
See United States v. Dentsply Int'l, Inc., 277
F.Supp.2d 387, 454 (D. Del. 2003) (admitting surveys
commissioned by a party and its analysis of the surveys as
non-hearsay party admissions). Bard contends this is an
erroneous interpretation by AngioDynamics because the
responses were not “made by the party in an individual
or representative capacity” as required by 801(2)(A).
Second, Bard contends it never adopted such surveys, and
third, they are not business records, as they do not meet the
requirements of 803(6). The court leans towards excluding
some, if not all, of these surveys for the reasons stated by
Bard. However, the court will not rule on these issues until
it sees how the evidence is presented at trial.
Bard wants this court to exclude any testimony and evidence
regarding inequitable conduct offered by AngioDynamics.
AngioDynamics asks this court to allow the jury to issue an
advisory opinion on the equitable conduct claims. The court
agrees with Bard. It is not for the jury to decide issues
related to inequitable conduct. See Interdigital
Commc'ns Inc. v. Nokia Corp., 2014 WL 12465431, at
*1 (D. Del. Aug. 28, 2014) (“Inequitable conduct is not
a matter for the jury to decide, and the jury should not hear
any of that evidence unless it is independently admissible
for some other purpose.”) The court will hear this
evidence and decide the equitable conduct claims.
in Limine, Filing No. 344-15, Ex. 13
first moves this court to preclude Bard from suggesting that
it invented power injectable ports or power injection
procedures. This is an issue that can be handled on cross
examination. If Bard chooses to assert this claim,
AngioDynamics can attempt to rebut it at trial.
AngioDynamics moves to preclude Bard from suggesting that, to
invalidate, prior art ports must have been marketed, sold, or
otherwise indicated for ...