Evidentiary rulings after bench trial
Forest Laboratories, Inc. v. Ivex Pharmaceuticals, Inc., No. 03-891-JJF July 25, 2006.
Farnan, J. After a bench trial, the court sustained about 10 out of 30 evidentiary objections after post-trial briefing.
EVIDENTIARY RULINGS AFTER BENCH TRIAL:
Not Admitted:
Demonstrative exhibits, where no response was made to objection;
Expert testimony beyond scope of expert report and offered in rebuttal to late-produced expert report was not admitted where there were 6 weeks until trial and expert subsequently filed a declaration without any mention of opinion in late report.
Admitted:
Technical expert’s opinions undisclosed in expert report, sworn declaration, or deposition were admitted where there was no bad faith, willful deception or flagrant disregard of order and where report sufficiently disclosed contested opinions;
Internal e-mails used by expert to support his testimony were not hearsay and bore prima facie authentication;
Clinical psychiatrist’s opinion on effect of drug marketing on physicians’ prescribing habits was allowed because of experience in writing prescriptions and supervising others, and objection goes only to weight;
Exhibits accompanying expert testimony on physicians’ prescribing habits were allowed as type reasonably relied upon by experts in his field;
Exhibits relating to expert testimony but not used during examination were admitted as they were identified in demonstratives as part of the trial record and are stipulated to be authenticated in the pretrial order;
Expert testimony comparing two studies was admitted despite no such comparison in expert report because the report contained analyses of both studies, and testimony was a permissible synthesis;
Lack of foundation objection was overruled due to provision in pretrial order regarding exhibits are deemed authentic;
Newspaper article objected to as hearsay was an adopted admission when executive vice president adopted statement from it;
Fact witness was permitted to testify about pharmacological effects where, although not an expert in pharmacology, he conducted the research himself;
Testimony as to particular persons possessing ordinary skill in the art;
Certified translation not produced in discovery of exhibit where opposing party had proffered same exhibit;
Exhibit relied upon by fact witness was hearsay but objection was waived where not raised at time provided by pretrial order;
Objections to untimely translation corrections not raised at trial were waived.
