Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 1 of 8 PageID #: 51978
`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 1 of 8 PagelD #: 51978
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`EXHIBIT 1
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`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 1 of 8 PagelD #: 51978
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 2 of 8 PageID #: 51979
`Case 1:09-md-02118-SLR Document 453 Filed 10/22/13 Page 1 of 3 PageID #: 7051
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`IN RE: CYCLOBENZAPRINE
`HYDROCHLORIDE EXTENDED(cid:173)
`RELEASE CAPSULE PATENT
`LITIGATION
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`) Civ. No. 09-MD-2118-SLR
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`ANESTA AG, APTALIS
`PHARMATECH, INC., and IVAX
`INTERNATIONAL, GMBH,
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`Plaintiffs,
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`v.
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`MYLAN PHARMACEUTICALS, INC.
`and MYLAN, INC.,
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`Defendants.
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`) Civ. No. 08-889-SLR
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`MEMORANDUM ORDER
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`At Wilmington this 22nd day of October, 2013, having conferred with counsel
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`over the below identified dispute at the discovery conference conducted on October 7,
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`2013;
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`IT IS ORDERED that, on or before November 8, 2013, plaintiffs shall
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`supplement their supplemental responses to defendants' damages contention
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`interrogatories, consistent with the guidance provided below:
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`1. At issue in this discovery dispute is the sufficiency of plaintiffs' responses to
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`defendants' damages contention interrogatories. Plaintiffs claim damages related to
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`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 3 of 8 PageID #: 51980
`Case 1:09-md-02118-SLR Document 453 Filed 10/22/13 Page 2 of 3 PageID #: 7052
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`defendants' at-risk launch of a generic product. 1 In response to defendants' first set of
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`individual interrogatories, 2 plaintiffs (after reciting a litany of standard objections)
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`claimed that "[d]amages related discovery in this action is in its early stages" and,
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`"[f]urther, the bases and calculation of ... damages is properly the subject of expert
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`discovery." Plaintiffs further claimed the need to view defendants' sales data before
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`they could calculate the proper measure of damages, and concluded by identifying
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`several theories of recovery they might pursue, including a reasonable royalty, treble
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`damages, lost profits, and disgorgement of profits. On October 4, 2013, plaintiffs
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`served their supplemental responses to defendants' interrogatories. The only
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`"supplement" provided by plaintiffs was the identification of hundreds of pages of
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`documents from which defendants could "derive the information requested by" the
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`interrogatory. Fact discovery closes December 13, 2013.
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`2. I recognize that the identification of documents in lieu of a substantive
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`response to an interrogatory is generally appropriate. I disagree that it is an appropriate
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`response to a contention interrogatory, however, unless such documents specifically
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`identify the contention in the first instance (unlikely) or provide specific data supporting
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`the contention that has already been described. In this case, given that plaintiffs have
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`yet to articulate their contentions with any particularity, I find it hard to believe that these
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`documents are particularly helpful.
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`3. I also acknowledge that the final calculation of damages is properly the
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`1The branded product is AMRIX®, the only cyclobenzaprine hydrochloride
`extended release capsules sold in the market at the time of defendants' launch at risk.
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`2Dated June 24, 2013.
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`2
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`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 4 of 8 PageID #: 51981
`Case 1:09-md-02118-SLR Document 453 Filed 10/22/13 Page 3 of 3 PageID #: 7053
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`subject of expert opinion. However, experts must rely on facts for their opinions. Facts
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`are the subject of fact discovery, and parties are required to disclose such facts before
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`the facts are massaged and manipulated by their expert witnesses.
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`4. With the above in mind, and in the unique circumstances surrounding this
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`litigation, 3 I conclude that plaintiffs at bar have an obligation to provide their good faith
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`bases for electing their theories of recovery, consistent with Fed. R. Civ. P. 11.4 In
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`other words, in order to claim, e.g., lost profits, plaintiffs must have some underlying
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`data5 that (at a minimum) reflects the fact that their profits have decreased (or would
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`have increased more) during the period of time related to defendants' infringing
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`conduct. 6
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`3To wit, plaintiffs are pursuing an infringement action in an ANDA case after
`judgment of infringement and validity has been entered, seeking damages relating to
`defendants' at-risk launch, a very discrete set of events.
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`4Particularly, that plaintiffs "formed [their contentions] after an inquiry reasonable
`under the circumstances, with "[t]he factual contentions hav[ing] evidentiary support."
`Fed. R. Civ. P. 11.
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`5Sales and/or marketing data.
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`6Piaintiffs, of course, should also have underlying data supporting their other
`theories of recovery.
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`3
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`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 5 of 8 PageID #: 51982
`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 5 of 8 PagelD #: 51982
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`EXHIBIT 2
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`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 6 of 8 PageID #: 51983
`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 6 of 8 PagelD #: 51983
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`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 7 of 8 PageID #: 51984
`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 7 of 8 PagelD #: 51984
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`EXHIBIT 3
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`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 8 of 8 PageID #: 51985
`Case 1:16-cv-00453-RGA Document 672-1 Filed 04/12/19 Page 8 of 8 PagelD #: 51985
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