United States District Court, D. Nevada
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.
a consolidated patent infringement case brought under the
Hatch-Waxman Act where Plaintiffs Amarin Pharma, Inc. and
Amarin Pharmaceuticals Ireland Limited seek to prevent
Defendants West-Ward Pharmaceuticals International Limited
(“West-Ward”), Hikma Pharmaceuticals USA Inc.
(“Hikma”), and Dr. Reddy's Laboratories, Inc.
and Dr. Reddy's Laboratories, Ltd. (collectively,
“DRL”) from launching generic competitor drugs to
Plaintiffs' drug Vascepa. Before the Court are the
parties' consolidated motions in limine (ECF Nos. 291,
292),  and two motions to seal corresponding to
responses to those motions (ECF Nos. 297, 300). As further
explained below, the Court will grant in part, and deny in
part, Defendants' motions in limine, mostly deny
Plaintiffs' motions in limine, grant Defendants'
motion to seal (ECF No. 297), and deny Plaintiffs' motion
to seal (ECF No. 300)-but will also give Defendants an
opportunity to show cause why the Court should not unseal the
exhibits attached to Plaintiff's response (ECF No. 299).
Court incorporates the background facts set forth in the
Court's order on the parties' motions for summary
judgment. (ECF No. 278 at 1-4.)
motion in limine is a procedural mechanism to limit testimony
or evidence in a particular area in advance of trial. See
United States v. Heller, 551 F.3d 1108, 1111-12 (9th
Cir. 2009). It is a preliminary motion whose outcome lies
entirely within the discretion of the Court. See Luce v.
United States, 469 U.S. 38, 41-42 (1984). To exclude
evidence on a motion in limine, “the evidence must be
inadmissible on all potential grounds.” See,
e.g., Ind. Ins. Co. v. Gen. Elec. Co., 326
F.Supp.2d 844, 846 (N.D. Ohio 2004). “Unless evidence
meets this high standard, evidentiary rulings should be
deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper
context.” Hawthorne Partners v. AT & T Tech.,
Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). This is
because although rulings on motions in limine may save
“time, cost, effort and preparation, a court is almost
always better situated during the actual trial to assess the
value and utility of evidence.” Wilkins v. Kmart
Corp., 487 F.Supp.2d 1216, 1218 (D. Kan. 2007).
limine rulings are provisional. Such “rulings are not
binding on the trial judge . . . [who] may always change
h[er] mind during the course of a trial.” Ohler v.
United States, 529 U.S. 753, 758 n.3 (2000).
“Denial of a motion in limine does not necessarily mean
that all evidence contemplated by the motion will be admitted
at trial.” Ind. Ins. Co., 326 F.Supp.2d at
846. “Denial merely means that without the context of
trial, the court is unable to determine whether the evidence
in question should be excluded.” Id.
is relevant if “it has any tendency to make a fact more
or less probable than it would be without the evidence”
and “the fact is of consequence in determining the
action.” Fed.R.Evid. 401. Only relevant evidence is
admissible. See Fed. R. Evid. 402. Relevant evidence
may still be inadmissible “if its probative value is
substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403. “Unfairly
prejudicial” evidence is that which has “an undue
tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.” United
States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir.
2005) (quoting Old Chief v. United States, 519 U.S.
172, 180 (1997)).
DEFENDANTS' CONSOLIDATED MOTION IN LIMINE (ECF NO.
filed two motions in limine. (ECF No. 291.) The Court
addresses each, in turn, below.
Rat and Mice Studies
first move in limine to preclude Plaintiffs from relying on
the preclinical carcinogenicity rat and mice studies included
in the product labelling to support Plaintiffs' induced
infringement theory because Plaintiffs did not preserve this
argument in its contentions, or alternatively because
Plaintiffs' experts did not rely on these animal studies
to support their infringement opinions. (ECF No. 291 at 2,
2-5.) Plaintiffs counter that they were never required to
disclose the precise evidence they intended to rely on to
support their infringement theory, but were merely required
to disclose the theory itself. (ECF No. 299 at 2-9.)
Plaintiffs further argue they have always been consistent in
asserting their theory that the labeling read in its entirety
induces infringement, so they have not waived reliance on the
rat and mice studies. (Id.)
Court mostly agrees with Plaintiffs, but also agrees with
Defendants that Plaintiffs' experts will not be allowed
to express opinions at trial that were not included in their
expert reports. The Court will therefore grant in part, and
deny in part, the motion. Plaintiffs' experts are
prohibited from testifying about the rat and mice studies at
trial to the extent they did not rely on those studies in
their expert reports. See Fed. R. Civ. P.
26(a)(2)(B)(i) (providing that opening expert reports are
normally expected to include a complete statement of all
opinions the witness will express at trial and their bases);
seealso Aidini v. Costco Wholesale Corp.,