Case 1:10-cv-00805-RGA Document 127 Filed 07/17/12 Page 1 of 2 PageID #: 1786

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE BRISTOL-MYERS SQUIBB CO., Plaintiffs,
V.

Civil Action No. 10-805-RGA

TEVA PHARMACEUTICALS USA, INC., : Defendant.

ORDER
Before the Court are two motions. Defendant filed a "Motion to Exclude the Expert Report and Related Testimony of Richard Killworth, Esq." (D.I. 100). Defendant also filed a "Motion to Exclude the Expert Report and Related Testimony of Katherine Seley-Radtke, Ph.D." (D.I. 98). Upon consideration ofboth motions and related briefing, the Court rules: 1. The Defendant's Motion (D.I. 100) is GRANTED. The report and testimony are excluded as I do not believe they will assist the trier of fact. See Fed. R. Evid. 702. 2. The Defendant's Motion (D.I. 98) is GRANTED (with leave for the Plaintiff to argue after the close of the Defendant's case that Dr. Seley-Radtke's testimony is necessary). This is done with the understanding that Defendant will not object based on the expert discovery rules to Plaintiffs other "esteemed nucleoside chemist" covering the same material to the extent it is material to his testimony. Having two experts with the exact same expertise is cumulative, and certainly increases the possibility of wasteful and redundant testimony. Dr. Seley-Radtke's testimony is therefore a good candidate for exclusion pursuant to Rule 403. I understand the trial

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in this case, on invalidity, 1 will proceed with the Defendant going first and the Plaintiff answering. Dr. Seley-Radtke's "tutorial" testimony might have some value ifthe Plaintiff were going to go first. By the time the Defendant presents its case, however, the background science is going to be well-trodden ground, and "tutorial" testimony is not going to be needed. Thus, I see it as having little probative value, which is substantially outweighed by its likely waste of time and needless presentation of cumulative evidence.

The Court understands Dr. Seley-Radtke's testimony to be relevant to invalidity, which, along with inequitable conduct, are the only issues left in the case. (D.I. 111, p.2).