Case 1:18-cv-12029-ADB Document 565 Filed 10/31/22 Page 1 of 3
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`Elaine Herrmann Blais
`+1 617 570 1205
`eblais@goodwinlaw.com
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`Goodwin Procter LLP
`100 Northern Avenue
`Boston, MA 02210
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`goodwinlaw.com
`+1 617 570 1000
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`October 31, 2022
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`VIA ECF
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`The Honorable Allison D. Burroughs
`United States District Court Judge
`John Joseph Moakley U.S. Courthouse
`1 Courthouse Way
`Boston, MA 02210
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`Re:
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`Teva Pharmaceuticals Int’l GmbH et al. v. Eli Lilly and Company, Civil Action No. 1:18-cv-
`12029-ADB
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`Dear Judge Burroughs:
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`We write on behalf of Plaintiffs Teva Pharmaceuticals Int’l GmbH and Teva Pharmaceuticals USA, Inc.
`(“Teva”), concerning the schedule for trial in the above-captioned matter, and in particular, the deadline
`for the parties to close the presentation of evidence in the jury trial. Teva had proposed that the parties
`close their presentation of evidence to the jury on November 4, with the jury charge and the parties’
`closings scheduled for November 7. Lilly has not made a formal proposal, but recently suggested that
`closings and the jury charge could take place on November 9. In Teva’s view, Lilly’s proposal would cut
`the window available for jury deliberations too short. At the latest, the parties should close and the jury
`should be charged by November 8.
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`The Court set the length of this jury trial long ago at three weeks, to be followed by a short bench trial
`regarding Lilly’s equitable defenses. During the January 20, 2022, Status Conference, the Court
`instructed the parties to select a four week block in the period beginning with the last week of September
`and running through November for the Court to set the trial date. The Court noted that having a four-
`week block of time would enable the Court to accommodate any necessary scheduling adjustments. ECF
`No. 258 at 18:19–19:4. The Court confirmed that three week trial period would encompass the entire
`jury trial, “all in counting jury selection,” and the bench trial, which should “be contiguous with the jury
`trial.” ECF No. 258 at 15:22–16:5, 19:23–20:2. The parties conferred and proposed October 17, 2022
`through November 11, 2022. On January 25, 2022, the Court set the start date for trial as October 18,
`2022. ECF No. 256.
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`At the first summary judgment hearing, on August 15, 2022, the Court asked the parties again if four
`weeks was “going to be enough” trial time for the parties’ full presentations of their evidence. Both parties
`confirmed it would be enough. ECF No. 465 at 93:11–22.
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`Case 1:18-cv-12029-ADB Document 565 Filed 10/31/22 Page 2 of 3
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`The Honorable Allison D. Burroughs
`October 31, 2022
`Page 2
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`Pursuant to agreement of the parties, the allotted time available to trial is to be split equally between the
`parties. In the parties’ Corrected Stipulation Regarding Trial Procedures, the parties agreed that (1) the
`jury trial and bench trial is to be timed; (2) the time for the jury trial and bench trial are to (separately) be
`split evenly between Teva and Lilly; and (3) the Court has the authority to terminate a party’s trial
`presentation if all of the allotted time was used. ECF No. 536 ¶¶ 51–57.
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`Recent representations from counsel for defendant Eli Lilly and Company (“Lilly”) regarding the amount
`of time Lilly claims to need to present its defensive case suggest that Lilly intends to renege on the parties’
`agreement and consume more than its equal share of trial time. Lilly’s proposal would have the effect of
`depriving Teva a sufficient opportunity to present Teva’s rebuttal case. Teva conducted its case-in-chief
`and its cross-examinations of Lilly’s witnesses in reliance on the schedule the Court set and the parties’
`stipulation that trial time would be split evenly between the parties. Teva would be gravely prejudiced if
`it were not permitted to put in its rebuttal evidence on validity while Lilly is permitted to present its rebuttal
`on infringement, willfulness, and damages.
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`The Court permitted Teva to present its evidence in the order following the burden of proof. The parties
`have proceeded to date with the understanding that presentation of evidence would be as follows:
`(1) Teva shall present its case first on the issues of infringement, willfulness, and damages; (2) Lilly may
`then present its response on infringement, willfulness, and damages and its case-in-chief on validity; and
`(3) Teva will then present its rebuttal case regarding invalidity. See Final Pretrial Conf. Tr. at 20:1–23:1
`(“THE COURT: I told you I'm going to let you try your case. So try your case the way you want to try it,
`and then you can respond the way you want to.”). The Court instructed the jury that the trial would
`proceed following this order of evidence in the preliminary jury instructions. Teva then presented
`evidence and rested its case-in-chief in reliance on the established order of proofs and the Court’s
`schedule, which gave the parties until November 10, 2022 to try both the jury trial and bench trial portions
`of this case.
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`With fewer than two weeks remaining in the four-week period to try this case, Teva seeks clarity from the
`Court regarding the schedule for the remainder of trial. Teva’s counsel has raised the same issue with
`Lilly daily since October 26 (the day before Teva rested its case-in-chief), particularly in view of the
`amount of time Lilly chose to dedicate to cross-examination during Teva’s case-in-chief and Lilly’s claim
`on October 26 that its case could take ten business days. However, Lilly has yet to commit to closing its
`evidence with sufficient time remaining for Teva’s rebuttal case or the bench trial.
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`Teva respectfully requests that the Court confirm that the trial must conclude (including jury deliberations)
`by November 10, 2022. To meet this deadline, Teva proposes that the parties close and the jury be
`charged no later than November 8 (and consequently that the bench trial occur on November 9 and 10).
`Teva does not agree to extend trial in a way that impacts juror availability.
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`Case 1:18-cv-12029-ADB Document 565 Filed 10/31/22 Page 3 of 3
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`The Honorable Allison D. Burroughs
`October 31, 2022
`Page 3
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`Respectfully submitted,
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`/s/ Elaine Herrmann Blais
`Elaine Herrmann Blais
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`Counsel of Record (by ECF)
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`cc:
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