You are on page 1of 2

Case 1:11-cv-00046-RGA-MPT Document 244 Filed 12/11/12 Page 1 of 2 PageID #: 3586

I i
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE GLAXOSMITHKLINE LLC, Plaintiff,
V.

l'

Civil Action No. 11-46-RGA

ANCHEN PHARMACEUTICALS INC., et al., Defendants.


ORDER DENYING MOTION TO EXCLUDE

Defendants have a pending motion to exclude. (D.I. 215). Defendants have submitted what I would estimate as being in excess of 1200 pages in support of their argument that Plaintiffs expert should be precluded from testifying about "written description" and that "a solution is a solvate." 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 expert is going to testify in any event. In addition, live testimony and crossexamination is much more likely to result in a correct decision from me about whether the expert is giving appropriate scientific testimony or making it up as he goes along. Most of what the Defendants have written in their briefs (D .I. 219, 23 8) sounds like cross-examination material. 1 There is also an argument that the expert uses the verb "envision" in his report rather than the verbs "visualize or recognize." There seems to be agreement by the end of the briefing that "visualize or recognize" are the correct verbs and that "envision" is an incorrect verb. Thus, I expect that the expert will use the correct verbs at trial rather than the

Were I a cynic, I would think the only reason Defendants have filed this motion is to make sure that I am paying attention when this cross-examination happens.

Case 1:11-cv-00046-RGA-MPT Document 244 Filed 12/11/12 Page 2 of 2 PageID #: 3587

incorrect verb that is in his report. I do not see that as a violation of Fed. R. Civ. P. 26(a)(2)(B). Of course, Defendants can cross-examine him on the different verbs. The Motion to Exclude (D.I. 215) is DENIED.

\1--l\ -)1__
Date