Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

Defendant in this patent infringement case moved for reconsideration in advance of trial on the issue of exclusion of expert testimony, a jury instruction to avoid prejudice with the admission of certain FDA letters, and on the scope of expert trial testimony.  The Court granted the motion in part as to the exclusion of expert testimony.  The portion of defendant’s expert’s report challenging plaintiff’s reliance on free base levalbuterol is not stricken, as defendant was not required to anticipate it in its opening brief.  Defendant’s own testing involving levalbulterol salt forms remains stricken, however, because the testing was not disclosed in its opening report.  A final jury instruction will be included regarding certain admissible FDA letters to avoid prejudice from these governmental statements.  The Court will rule on the scope of expert testimony during trial but guided the parties by noting that expert testimony at trial may include a reasonable degree of elaboration and/or synthesis of the original report contents.