The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 IN RE HIV ANTITRUST LITIGATION. Case No. 19-cv-02573-EMC
8
ORDER RE TRIAL WITNESS
9 DISCLOSURES
10 Docket No. 1977
11
12
13
14 The parties have submitted disputes related to exhibits to be used with the defense expert
15 Ms. O’Malley. The Court rules as follows.
16 • Exhibit 5150. This exhibit is (in effect) the Merchant & Gould opinion. The
17 objections are overruled. In her expert report, Ms. O’Malley did give some
18 opinions on the Merchant & Gould opinion, even if she largely relied on Dr.
19 Berkland’s evaluation of the Merchant & Gould opinion. See, e.g., O’Malley Rpt.
20 ¶ 246 (“Mr. Lentz’s reliance on legal opinion letters from Merchant & Gould does
21 not change my opinion. The Merchant & Gould opinion letters are a legal
22 evaluation of Teva’s defenses to infringement of Gilead’s patents. They are not a
23 replacement for litigation where both side’s arguments and evidence are laid out,
24 nor are they based on a fully developed record. Furthermore, as discussed above,
25 Dr. Berkland analyzed many of the issues discussed in the opinion letters and
26 disagreed. This highlights the fact that the Merchant & Gould opinions would
27 require substantial expert witness support – another consideration that Mr. Lentz
1 • Exhibits 5435, 5436, 8248. These exhibits are expert reports – specifically, of Mr.
2 Lentz and Ms. O’Malley. Defendants state that they do not intend to admit the
3 reports as evidence but they do seek to publish parts of the reports, if necessary or
4 useful. The Court defers ruling. It is possible that the Lentz reports could be used
5 to impeach. It is possible that figures or charts may be useful as demonstratives.
6 • Exhibit 7858. The Court defers ruling on the objections. It is not clear what is the
7 relevance of the 2022 version of the Orange Book.
8 • Exhibit 7883. The Court defers ruling on the objections. It appears that Ms.
9 O’Malley did not, in her expert report, refer to the lawsuit that Gilead filed against
10 Mylan in the federal West Virginia court.
11 • Exhibit 7966. This exhibit relates to litigation that Teva filed against Mylan in the
12 District of New Jersey. “Plaintiffs maintain their position that the proper avenue to
13 explore these issues [e.g., that Teva took positions in the New Jersey suit consistent
14 with Gilead in the FTC patent infringement suit] is through the briefing submitted
15 by Teva and Gilead in the underlying [FTC patent infringement] litigation.” Jt. St.
16 at 4. The objections are overruled. If necessary, Plaintiffs may ask for a limiting
17 instruction to ensure that there is no jury confusion.
18 • Exhibit 8054. This exhibit is a declaration (from Stanley M. Roberts) that was
19 submitted in a patent interference proceeding before the PTO. Defendants
20 represent, and Plaintiffs do not appear to contest, that the declaration was a part of
21 the litigation record in the FTC patent infringement suit. Ms. O’Malley does
22 appear to have referenced the declaration in her expert report. See O’Malley Rpt. ¶
23 110 (“Gilead also refuted Teva’s other supposed evidence to the contrary. Gilead
24 first pointed out material weaknesses in Dr. Robert’s testimony and that Dr.
25 Roberts had, only a few years earlier, described the state of the art differently and
26 in a manner that was consistent with Gilead’s view of the art at trial.”). The
27 objections are overruled. If necessary, Plaintiffs may ask for a limiting instruction
1 • Exhibit 8075. The Court has already addressed this exhibit in a prior order (in
2 conjunction with the testimony of Mr. Lentz). See Docket No. 1958 (order).
3 Defendants confirm that they do not intend to admit the exhibit (an opinion issued
4 by the federal New Jersey court in the case that Teva filed against Mylan).
5 • Mr. Lentz’s trial testimony on June 9 and 13, 2023. The objections are sustained
6 in part and deferred in part. Defendants state that they intend only to publish
7 portions of the testimony; however, publication is not appropriate given the Court’s
8 statement to the jury that they would not be provided with any trial transcript.
9 Plaintiffs also argue that Ms. O’Malley should not be permitted to respond to
10 testimony that Mr. Lentz gave at trial (as opposed to that provided in his report).
11 The Court defers ruling on this part of Plaintiffs’ objection. The situation with Ms.
12 O’Malley is different from that with Mr. Lentz: Ms. O’Malley was hired to respond
13 to Mr. Lentz’s opinion; Mr. Lentz made the decision not to consider Teva’s
14 subjective beliefs (Ms. Julie’s testimony) in writing his expert report.
15 • Sanofi-Synthelabo v. Apotex, Inc., 550 F.3d 1075 (Fed. Cir. 2008). The objections
16 are overruled. Defendants do not intend to admit the opinion into evidence. Mr.
17 Lentz was already questioned about the case during his testimony on June 13.
18 • Sanofi-Synthelabo v. Apotex, Inc., 492 F. Supp. 2d 353 (S.D.N.Y. 2007). The
19 objections are overruled. Given that Ms. O’Malley considered the Federal Circuit
20 case above, it is a reasonable inference that she was also aware of the lower court
21 opinion. Defendants do not intend to admit the opinion into evidence.
22 • Immunex Corp. v. Sandoz Inc., 964 F.3d 1049 (Fed. Cir. 2020). The objections are
23 overruled. Mr. Lentz gave testimony on some general parameters regarding patent
24 law (that are not in dispute); it is not unfair for Ms. O'Malley to do the same.
25 Defendants do not intend to admit the opinion into evidence.
26 • Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 689 F.3d 1368 (Fed. Cir. 2012).
27 The Court defers ruling on the objections. Ms. O’Malley does not appear to have
1 • Aventis Pharma Deutschland GmbH v. Lupin, Ltd., 499 F.3d 1293 (Fed. Cir.
2 2007). The objections are overruled. Ms. O’Malley testified about this case in her
3 expert report because Mr. Lentz had relied on it. Defendants do not intend to admit
4 the opinion into evidence.
5 • Abbvie Inc. v. Mathilda & Terence Kennedy Inst. of Rheum. Trust, 764 F.3d 1366
6 (Fed. Cir. 2014). The Court defers ruling on the objections. Ms. O’Malley does
7 not appear to have cited this case in her expert report.
8 • In re Adamson, 47 C.C.P.A. 839 (1960). The objections are overruled. Ms.
9 O’Malley testified about this case in her expert report because Mr. Lentz had relied
10 on it. Defendants do not intend to admit the opinion into evidence.
11 • DDX5.0002-.0004 (demonstrative). The objections are overruled.
12 • DDX5.0007. The objections are overruled. As indicated above, Defendants may
13 refer to Ms. O’Malley as a “patent law expert.”
14 • DDX5.0012, .0015, .0031, .0041. The objections are sustained. See the Court’s
15 comments above on the trial testimony of Mr. Lentz (June 9 and 13). Ms.
16 O’Malley may still testify about her response to Mr. Lentz’s testimony.
17 • DDX5.0021, .0026. The objections are sustained. See above.
18 • DDX5.0030, .0039, .0050. The objections are sustained. See above.
19 • DDX5.0036. The objections are overruled.
20 • DDX5.0014. The objections are overruled.
21 • DDX5.0027-.0028. The objections are overruled.
22 • DDX5.0040. The objections are overruled.
23 • DDX5.0043-.0044. The objections are overruled.
24 • DDX5.0060-.0062. The objections are overruled.
25 • DDX5.0052-.0053. Ruling on the objections are deferred. The Court overruled
26 the objections with respect to Exhibit 5150 (see above). Arguably, here,
27 Defendants have positioned Ms. O’Malley to testify about the Merchant & Gould
1 opinion in a way not disclosed in her expert report. However, in her report, Ms.
2 O’Malley did indicate that she agreed with the analysis of Dr. Berkland.
3 e DDX5.0057-.0058. The objections are overruled.
4 e DDX5 (all trial stickers). The objections are sustained in part and overruled in
5 part. So long as Defendants are making reference to exhibits that have been
6 admitted, the trial stickers may be used.
7 e Exhibits 660, 791, 2005, 2025, 5754. The objections are overruled. The
8 litigations/settlement agreements between Gilead and other generic manufacturers
9 have, at least, some probative value with respect to Ms. O’Malley’s credibility.
10 e Exhibit 5665. The Court defers ruling on the objections. It is not clear that the
11 prescribing information for FTC has probative value with respect to Ms.
12 O’Malley’s testimony specifically.
13 e Exhibit 6470. The objections are overruled.
14 e Exhibits 9450, 9451, 9453, 9454. The Court defers ruling on the objections.
15 e PDX24.7 (demonstrative). The objections are sustained. The middle column is
A 16 outside the scope of Ms. O’Malley’s testimony.
i IT IS SO ORDERED.
18
19 |) Dated: June 20, 2023
20 LL
21 for
EDWAR . CHEN
22 United States District Judge
23
24
25
26
27
28