Case 1:18-cv-12029-ADB Document 566 Filed 11/01/22 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`TEVA PHARMACEUTICALS
`INTERNATIONAL GMBH and
`TEVA PHARMACEUTICALS USA, INC.,
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`Plaintiffs,
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`v.
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`ELI LILLY AND COMPANY,
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`Defendant.
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`Case No. 1:18-cv-12029-ADB
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`LILLY’S BENCH MEMO ON TRIAL TIMING
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`Teva’s statements on the record on October 31, 2022, suggest that it believes the parties
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`should present closing arguments and the jury should be charged on Monday, November 7, 2022,
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`meaning that the presentation of all evidence would need to be complete by the end of the day on
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`Friday, November 4, 2022. Lilly respectfully submits that this schedule would contravene the
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`parties’ prior stipulations and would prejudice Lilly. Lilly is entitled to the same full and fair
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`presentation of its case-in-chief that Teva has already enjoyed. Teva’s new attempt at the literal
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`eleventh hour to frame a November 8, 2022 closing as a last-resort compromise position (ECF No.
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`565 at 1-2) is illusory, since Teva’s letter makes clear that this later timing is motivated by its own
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`desire to present additional witnesses in a rebuttal case it started on the second day of trial.
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`A.
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`Lilly Is Entitled To Present Its Case
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`Teva’s letter (ECF No. 565) is notably silent on how this trial has actually proceeded.
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`Including its opening statement, Teva spent nearly 18 hours across six trial days presenting its
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`case-in-chief on the issues where it has the burden of proof: patent ownership, indirect
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`infringement, willful infringement, and damages. All of those were full trial days beginning at 10
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`Case 1:18-cv-12029-ADB Document 566 Filed 11/01/22 Page 2 of 5
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`AM and ending at 4 PM. Of Teva’s 18-hour case-in-chief, 3 hours and 39 minutes were spent on
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`direct and redirect examinations of three inventors of the patents-in-suit, who offered little if any
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`relevant evidence on the issues where Teva bears the burden: ownership, infringement, and
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`damages. To the contrary, this testimony was unambiguously intended to proactively rebut Lilly’s
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`case-in-chief. Roughly ten more of Teva’s eighteen hours over five trial days were devoted to
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`Teva’s damages case, presented through nine different witnesses.
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`Lilly has only just completed its second “full” day (a partial day from 9 AM to 1 PM) of
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`its case-in-chief on the invalidity of the patents-in-suit, plus its rebuttal on the issues listed above.
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`Teva now insists that Lilly complete its entire case within four more trial days (one of which is
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`another partial day), while somehow Teva also shoehorns in its own “rebuttal” case. This is simply
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`not possible. Lilly has yet to call any of its expert witnesses and expects to call six of them. Lilly
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`also still plans to call nine fact witnesses, either live or by deposition. Teva’s hour-long cross
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`examination of Lilly’s fact witness Dr. Ryan Darling on the morning of October 31—which
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`exceeded the length of the direct by more than twenty minutes—does not provide comfort that
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`Teva will collaborate in streamlining the case. It is unclear how Lilly could be accused of
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`consuming more than its equal share of trial time (ECF No. 565 at 2) when it is Teva, not Lilly,
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`who has used more hours of trial time (currently Teva’s 20 hours, 56 minutes versus Lilly’s 17
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`hours 52 minutes). Lilly requests the Court’s assistance to prevent further inequities.
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`In a good faith attempt to compromise and to meet the needs of the Court and the jury,
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`Lilly has been streamlining its forthcoming presentations wherever possible. As set forth by Lilly
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`in court on October 31, however, those efforts have been hampered by extensive evidentiary
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`objections from Teva, many in conflict with prior rulings from this Court. Since Lilly arrives at
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`Case 1:18-cv-12029-ADB Document 566 Filed 11/01/22 Page 3 of 5
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`the courthouse each morning unsure of what its witness presentations will look like due to these
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`actions, it makes it all the more difficult to commit to precise witness timings.
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`B.
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`Closings and Charge Should Occur on November 8th
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`Assuming that the remaining trial days of November 1, 2, 3, 4, and 7 proceed on schedule,
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`Lilly currently believes that it could complete the presentation of its case by the end of the trial
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`day on Monday, November 7, 2022. As a hypothetical, a 60/40 split of that remaining time
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`between Lilly and Teva (not unreasonable with Lilly presenting a streamlined version of both its
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`case-in-chief and rebuttal case simultaneously) would result in a near-even total division of the
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`jury trial time of approximately 30 hours apiece. But that even split is only possible if Monday,
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`November 7 is a full trial day. Otherwise, any truncation of available time will be at Lilly’s
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`expense. Closings and charge of the jury could take place on the partial day of Tuesday, November
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`8, 2022, leaving two full days for the jury to deliberate before the end of the colloquy period. Lilly
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`takes no position on whether Teva will have any time remaining or available to present a rebuttal
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`case.
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`In contrast, Teva’s concept of the trial has been a moving target. Teva told the Court in
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`the Joint Pretrial Memorandum that it expected the jury trial to be complete by November 2, 2022.
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`(ECF No. 512 at 24.) In practice, if the trial had actually unfolded on this schedule, Lilly would
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`have had less than four days to present its case. On the evening of October 5, 2022, the eve of the
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`final pretrial conference, Teva told Lilly that “Teva expects to propose to the court tomorrow that
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`the parties’ presentations to the jury should not require more than 50 hours of total trial time, and
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`that the inequitable conduct bench trial can be conducted in two days.” Ex. A at 1. Holding them
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`to that promise, Teva, which has used 20 hours, 56 minutes of trial time to date, would have a mere
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`Case 1:18-cv-12029-ADB Document 566 Filed 11/01/22 Page 4 of 5
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`4 hours, 4 minutes remaining. Lilly’s proposal above is more equitable to both parties while
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`still aligning to the time constraints of the jury.
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`C.
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`The Bench Trial Should Not Rush the Jury
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`Lilly’s position on trial timing in this case has been consistent from the outset and aligns
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`with that expressed by the Court on the record on October 28 and October 31, 2022: the “trial”
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`time in this case for the jury trial should be measured within the trial window of October 18, 2022,
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`through and including November 10, 2022. Lilly is open to scheduling the bench trial at a time
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`convenient for the Court and for the parties, but notes that the Court has already stated with regards
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`to the bench trial in this case that “we don’t need to do it in those same three days”—meaning
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`the three days of November 8-10, 2022—and that “[y]ou can do those three days for this jury.”
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`Day 9 Trial Tr. (October 28, 2022) at 157:24-25. Regardless, neither the bench trial, nor any
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`potential additional rebuttal case from Teva, should result in a compression or reduction of Lilly’s
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`share of its trial time for its case. Teva’s mismanagement of its trial time should not come at
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`Lilly’s expense.
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`Lilly requests that the remainder of the jury trial be scheduled and conducted consistent
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`with the above proposal.
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`Case 1:18-cv-12029-ADB Document 566 Filed 11/01/22 Page 5 of 5
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`Dated: November 1, 2022
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`
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` /s/Andrea L. Martin
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`William B. Raich
`Danielle A. Duszczyszyn
`Denise Main
`Pier D. DeRoo
`Matthew Luneack
`Yoonjin Lee
`Sydney Kestle
`J. Michael Jakes
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`William.Raich@finnegan.com
`Danielle.Duszczyszyn@finnegan.com
`Denise.Main@finnegan.com
`Pier.DeRoo@finnegan.com
`Matthew.Luneack@finnegan.com
`Yoonjin.Lee@finnegan.com
`Sydney.Kestle@finnegan.com
`Mike.Jakes@finnegan.com
`
`Andrea L. Martin (BBO 666117)
`BURNS & LEVINSON LLP
`125 High Street
`Boston, MA 02110-1624
`(617) 345-3000
`amartin@burnslev.com
`
`Charles E. Lipsey
`Ryan O’Quinn
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`1875 Explorer Street, Suite 800
`Reston, VA 20190-6023
`Charles.Lipsey@finnegan.com
`Oquinnr@finnegan.com
`
`Emily R. Gabranski (BBO 694417)
`Marta Garcia Daneshvar (BBO 708800)
`Lulu Wang (BBO 704042)
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`2 Seaport Lane
`Boston, MA 02210-2001
`Emily.Gabranski@finnegan.com
`Marta.Garcia@finnegan.com
`Lulu.Wang@finnegan.com
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`Attorneys for Defendant
`Eli Lilly and Company
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`CERTIFICATE OF SERVICE
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`I, Andrea L. Martin, hereby certify that this document filed through the ECF system will
`be sent electronically to the registered participants as identified on the Notice of Electronic Filing
`(NEF) and paper copies will be sent to those indicated as non-registered participants on
`November 1, 2022.
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`/s/Andrea L. Martin
`Andrea L. Martin, Esq.
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`5
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