Case 1:11-cv-00576-RGA Document 175 Filed 05/30/13 Page 1 of 2 PageID #: 5111

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE VIIV HEALTHCARE UK LTD., et al., Plaintiffs, v. LUPIN LTD., et al., Defendants. Civil Action No. 11-576-RGA

ORDER DENYING MOTION TO EXCLUDE

Defendants have a pending motion to exclude. (D.I. 146). Defendants seek to exclude the testimony of three of Plaintiffs' experts for nine various reasons. (D.I. 147, pp.1-2). In excess of 1600 pages of appendices have been submitted, as well as briefing not only on the merits but on collateral arguments such as compliance with the local rules and the submission of an expert affidavit. Plaintiffs, not surprisingly, argue that the matters raised are, among other things, suitable cross-examination topics. 1 While I acknowledge the "gate-keeper" function of a federal trial judge, it is inefficient in the extreme to spend hours trying to figure this out in advance of a bench trial in which the likelihood is that the experts are going to testify in any
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I would characterize the arguments raised as "unreliable or no data" (Greco 1 & 2; Langer 2); "lack of fit" (Greco 3 & 4); and lack of qualifications relative to his proposed testimony (Langer 1). It is hard to characterize the Ho objections. From what I understand, Ho certainly has admissible opinions about the interpretation oflab notebooks and related issues about conception and reduction to practice. Thus, I think all three objections to Ho's proposed testimony are evidentiary objections that can be raised and dealt with as questions are asked of him. In regard to the Langer qualifications, I will decide that upon appropriate objection at trial. In regard to the data and fit objections, if Defendants want to renew any of them after the direct and cross-examination testimony of Greco or Langer, Defendants should submit a letter no later than twenty-four (24) hours after the "daily copy" is available, with references to the transcript, and only to the trial transcript, explaining how the trial transcript supports whichever Daubert arguments Defendants choose to renew. Failure to do so will be considered by me to be a waiver of the argument.

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event. In addition, live testimony and cross-examination, in the context ofthe issues actually in dispute at triaV are much more likely to result in a correct decision from me about whether an expert is giving appropriate reliable scientific testimony, or using bad data and/or inappropriate methods to reach unreliable conclusions. Much of what the Defendants have written in their briefs indeed sounds to me like crossexamination material. The Motion to Exclude (D.I. 146) is DENIED WITH LEAVE TO RAISE AT TRIAL. The Motion to Strike Untimely Affidavit (D.I. 154) is DISMISSED AS MOOT.3

Oral argument would not be helpful. Therefore, the Court will not grant the request for oral argument. The Court notes that regardless of whether Defendants complied with the rules (about which the Court expresses no opinion), the Court's view is that the efficient processing of cases to trial would suggest that the better procedure is to raise the sorts of issues raised in the Au affidavit in an answering expert report rather than an affidavit.
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