Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Save to My Library
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
txed-2-07-cv-00262-663

txed-2-07-cv-00262-663

Ratings: (0)|Views: 451|Likes:
Published by svlawgeek

More info:

Published by: svlawgeek on Jun 14, 2010
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

06/13/2010

pdf

text

original

 
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXASMARSHALL DIVISION
 TYCO HEALTHCARE GROUP LP,MALLINCKRODT INC. and LIEBEL-FLARSHEIM COMPANY,Plaintiffs,v.E-Z-EM, INC. and ACIST MEDICALSYSTEMS, INC.,Defendants.§§§§§§§§§§ CIVIL ACTION NO. 2:07-CV-262 (TJW)
ORDER
Before the Court are the parties’
Motions
in Limine
. [Dkt. Nos. 586, 601, 605] The Courtconducted a pretrial hearing on May 28, 2010 during which the Court heard arguments aboutthese motions. The Court ruled from the bench as follows:
I.
 
Plaintiffs Motions
in limine
 1.
 
Preclude defendants from calling “Innovasafe, Inc.” as a witness attrial
“If a party fails to provide information or identify a witness as required by Rule 26(a) or(e), the party is not allowed to use that information or witness to supply evidence . . . at a trial,unless the failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). This motionis GRANTED.
2.
 
Preclude testimony from Lyn Driskill
The parties have AGREED to this motion. This motion is GRANTED.
3.
 
Preclude examination of third party witnesses based upon documentsthat defendants marked Confidential or Highly Confidential
Mallinckrodt argues that E-Z-EM revealed to third-party witnesses documents that weremarked Confidential but then would not allow Mallinckrodt to cross-examine those witnesses
 
with other similarly marked documents. For example, during the deposition of StephenBellofatto who is a product developer by an outside company that implements the use-relatedfeatures of E-Z-EM’s Empower injectors, Mr. Ruttenberg attempted to question Mr. Bellofattoabout a design document. Mr. Bennett allegedly refused to allow Mr. Bellofatto look at thedocument.To the extent that either party hindered the cross-examination of a witness on a topic, theCourt will not allow that party to present the witness’ testimony on that topic at trial. The CourtGRANTS this motion in part.
4.
 
Preclude admission of the dollar amounts in settlement agreementsmade under the threat of litigation
Mallinckrodt argues that the evidence of the amounts of prior settlements made under thethreat of litigation raises an unreasonable risk of unfair prejudice under Fed. R. Evid. 403. Thegeneral rule is that royalties paid to avoid litigation are not a reliable indicator of the value of apatent.
See Automation Corp. v. Microsoft Corp.
, 587 F.Supp.2d 794, 801 (E.D. Tex. 2007).However, where a settlement agreement involves the same patent or technology, they may behighly relevant, notwithstanding their origins.
See
 
 ResQNet.com, Inc. v. Lansa, Inc.
, 594 F.3d860 (Fed.Cir.2010);
 Datatreasury Corp. v. Wells Fargo & Co.
, 2010 WL 903259 (E.D. Tex.2010).This motion is GRANTED as to all licenses except those that are sufficiently similar.
5.
 
Preclude evidence and argument concerning product liability lawsuitsand judgments
This motion is GRANTED per Rule 403.
6.
 
Preclude evidence of reexamination proceedings of the patent-in-suit
The fact that there are reexamination proceedings and a decision has been made by thePTO is not probative of any element regarding any claim of invalidity.
Procter & Gamble Co. v.
 
Kraft Foods Global, Inc.
, 549 F.3d 842, 848 (Fed.Cir. 2008) (“a requestor's burden to show thata reexamination order should issue from the PTO is unrelated to a defendant's burden to proveinvalidity by clear and convincing evidence at trial”). This motion is GRANTED.
7.
 
Preclude evidence and argument concerning Tyco’s former CEO
The parties have AGREED to this motion. This motion is GRANTED.
8.
 
Preclude evidence or testimony regarding any design-around of thepatent-in-suit or claim that such design-around is a non-infringingalternative
Mallinckrodt sought and E-Z-EM obstructed discovery regarding E-Z-EM’s design-aroundefforts. E-Z-EM is not permitted to introduce evidence that it declined to produce as requested.
See
Fed. R. Civ. P. 37(c)(1). This motion is GRANTED as to actual design-around efforts. Thismotion is denied as to possible non-infringing alternatives.
9.
 
Preclude testimony or evidence regarding alleged spoliation
This motion is DENIED. The parties are permitted to present evidence of spoliation.
10.
 
Preclude testimony or evidence to the jury relating to the defenses of laches, equitable estoppel, and inequitable conduct
This motion is GRANTED with a narrow exception. E-Z-EM is entitled to presentevidence for the purpose of overcoming the presumption of validity and to rebut the claim of willfulness.
11.
 
Preclude reference to Kirkland’s representation of high-profile clients
The parties have AGREED to this motion.
12.
 
Preclude defendants’ experts from testifying beyond the scope of theirexpert reports
The parties have AGREED to this motion.
13.
 
Preclude defendants from presenting evidence or argumentcomparing their accused devices with plaintiffs’ products

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->