`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`
`Plaintiffs,
`
`v.
`
`Amneal Pharmaceuticals, LLC,
`
`
`Defendants.
`
`Civil Action No. 14-CV-2758 (PAC)
`
`
`AMNEAL PHARMACEUTICALS, LLC’S MOTION IN LIMINE
`TO EXCLUDE EXPERT TESTIMONY FOR REFUSAL
`TO PROVIDE DEPOSITION OF THE EXPERT
`
`Amneal Pharmaceuticals, LLC (“Amneal”) seeks a straightforward application of Federal
`
`Rule of Civil Procedure 26(b)(4)(A), which gives parties the right to depose any testifying
`
`experts. Fed. R. Civ. P. 26(b)(4)(A) (“A party may depose any person who has been identified
`
`as an expert whose opinions may be presented at trial”).
`
`Plaintiffs intend to offer the opinion of Dr. James A. Kaduk as evidence that Amneal’s
`
`accused product infringes claims 1 and 22–25 of the ’993 patent. Plaintiffs, however, failed to
`
`produce Dr. Kaduk for deposition by Amneal.
`
`After an unsuccessful attempt to reach a stipulation regarding infringement, Amneal
`
`requested to go forward with Dr. Kaduk’s deposition for a single hour, at the end of a day on
`
`which Dr. Kaduk was sitting for deposition by other defendants. Amneal wrote to Plaintiffs:
`
`It looks like the stipulation will not get done, if at all, before the
`close of Kaduk depositions. So, Amneal would like 1 hour at the
`end of the currently schedule[d] ones. Please let me know what
`time and which day.
`
`(Maddox Decl., Ex. 1 at 2, November 9, 2016 Email from Amneal’s Counsel to Plaintiffs’
`
`1
`
`
`
`Case 1:14-cv-02758-PAC Document 104 Filed 12/16/16 Page 2 of 3
`
`Counsel.)
`
`Plaintiffs refused at the time, but promised to make him available upon request.
`
`We . . . believe that the deposition will not be necessary. In the
`unlikely event that it becomes so, we will work with you to
`arrange a mutually convenient time that works for Dr. Kaduk.
`
`(Id. at 1, November 10, 2016 Email from Plaintiffs’ Counsel to Amneal’s Counsel (emphasis
`
`added).)
`
`Two weeks later, Amneal asked for the promised deposition of Dr. Kaduk.
`
`At this point, Amneal would like to proceed with the promised
`deposition. It will not exceed one hour. Please advi[s]e as to time
`and place you are offering Dr. Kaduk.
`
`(Id. at 1, November 26, 2016 Email from Amneal’s Counsel to Plaintiffs’ Counsel.)
`
`Plaintiffs never produced Dr. Kaduk for deposition by Amneal. Plaintiffs stonewalled
`
`instead, refusing even to acknowledge Amneal’s request. Almost four weeks later, Plaintiffs
`
`pushed again for a stipulation but continued to ignore the promised deposition. (Maddox Decl.,
`
`Ex. 2, December 15, 2016 Email from Plaintiffs’ Counsel to Amneal’s Counsel.)
`
`Despite refusing a deposition, Plaintiffs intend to introduce Dr. Kaduk’s expert opinions
`
`as evidence that Amneal infringes the asserted claims of the ’993 patent. The Court should
`
`preclude Dr. Kaduk from offering those opinions.
`
`2
`
`
`
`Case 1:14-cv-02758-PAC Document 104 Filed 12/16/16 Page 3 of 3
`
`Respectfully submitted,
`
`/s/ Steven A. Maddox
`Steven A. Maddox
`Jeremy J. Edwards
`Kaveh Saba
`Maddox Edwards PLLC
`1900 K Street N.W., Suite 725
`Washington, D.C. 20006
`(202) 830-0707
`smaddox@meiplaw.com
`jedwards@meiplaw.com
`ksaba@meiplaw.com
`
`Attorneys for Defendant
`Amneal Pharmaceuticals, LLC
`
`
`
`
`
`Dated: December 16, 2016
`
`
`
`
`
`
`
`3
`
`
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