ALTANA PHARMA AG v. TEVA PHARMACEUTICALS USA INC
2:04-cv-02355
D.N.J.May 14, 2013Background
- This matter concerns Plaintiffs Altana Pharma AG and Wyeth’s motion in limine seeking to exclude certain expert testimony under Rule 702 and 403.
- Defendants challenge Dr. Leitzinger’s lost profits calculations and critique of Dr. Vellturo’s market analysis, and challenge Drs. Malackowski, Bernatowicz, and Schubert on royalties and PPI interchangeability.
- The court addresses admissibility of these experts’ opinions and related licensing and demand analyses.
- The court finds the experts need not be excluded outright; issues go to weight and credibility for cross-examination.
- The court also notes a moot issue regarding Dr. Sullivan’s bundling opinion and outlines the general evidentiary standards.”
- The ruling: Plaintiffs’ motion is denied in its entirety.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Leitzinger’s lost profits calculations | Leitzinger’s calculations are not sponsored as his own and rely on improper methodology. | Leitzinger’s rebuttal demonstrates the but-for world and challenges Vellturo’s overstated losses. | Admissible; not excluded at this stage. |
| Admissibility of Leitzinger’s critique of Panduit-based demand | Dr. Leitzinger misapplies Panduit regarding demand for the patented product. | Court may consider the bases underlying demand as part of Dr. Leitzinger’s analysis. | Admissible; relevant and assistive to jury; not excluded. |
| Admissibility of Malackowski and Bernatowicz on reasonable royalties | Licensing agreements used as benchmarks are not sufficiently comparable to the hypothetical license. | Licensing disagreements go to weight, not admissibility; cross-examination can address flaws. | Admissible; licensing literature issues are for jury evaluation, not exclusion. |
| Admissibility of Schubert on PPI interchangeability | Schubert relies solely on personal view without broader physician consensus; lacks survey data. | Schubert’s experience and credentials justify his testimony; cross-examination addresses limitations. | Admissible; Dr. Schubert qualified; weight to be determined by cross-examination. |
| General standard and gatekeeping for expert testimony | Court applies Rule 702 and Daubert/Kumho standards; waives exclusion except where clearly inadmissible. |
Key Cases Cited
- DePuy Spine, Inc. v. Medtronic Sofamor Danek, 567 F.3d 1314 (Fed. Cir. 2009) (First Panduit factor: demand for patented product not strictly limited to demand for the claimed feature; basis for determining existence of demand)
- ActiveVideo Networks, Inc. v. Verizon Communications, Inc., 694 F.3d 1312 (Fed. Cir. 2012) (Disagreements over licensing benchmarks go to weight, not admissibility)
- i4i Ltd. P'ship v. Microsoft Corp., 598 F.3d 831 (Fed. Cir. 2010) (Disputes over reliance on licenses are factual issues for cross-examination)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993) (Gatekeeping admissibility of expert testimony; liberal policy toward admissibility)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (U.S. 1999) (Daubert framework extends to all expert testimony testing reliability and relevance)
- Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978) (Defines Panduit factors for evaluating lost profits in patent cases)
- Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408 (3d Cir. 2002) (Admissibility and cross-examination to attack expert testimony)