`Case 1:14-cv-02758-PAC Document 134 Filed 01/27/17 Page 1 of 3
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`MADDOX II? EDWARDS
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`1900 K STREET NW - SUITE 725
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`WASHINGTON. DC 20006
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`(202) 830 - 0707
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`January 26, 2017
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`Hon. Paul A. Crotty
`United States District Judge
`Daniel Patrick Moynihan United States Courthouse
`500 Pearl Street, Room 735
`New York, NY 10007
`
`Re:
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`Kowa Company, Ltd. et al. v. Amneal Pharmaceuticals LLC, et al. ,
`Case Nos. 14-cv-2758 (PAC); 14-cv-7934 (PAC); and 15-cv-3935 (PAC);
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`Your Honor:
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`We object to Plaintiffs’ introduction of new expert opinions regarding a document that
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`Plaintiffs did not produce until trial: PTX-735. Specifically, Plaintiffs first produced PTX-735
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`to Amneal and Apotex on January 10, 2017, when the parties exchanged trial exhibits.
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`Amneal and Apotex seek the same relief that Plaintiffs sought, and the Court granted,
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`with respect to proposed expert opinions regarding a document that Apotex and Amneal did not
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`identify until the end of expert discovery, and served with a supplemental expert report back in
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`November.
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`(Trial Transcript 398:2-5.)
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`Here, plaintiffs’ delay was longer, and the unfair surprise more prejudicial. Plaintiffs
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`never served a supplemental report or in any way disclosed what new opinion Dr. Byrn intends
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`to offer based on PTX-735. Amneal and Apotex would not learn that new opinion until Dr.
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`Bym’s direct examination on the last day of trial. Obviously, Amneal and Apotex would be
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`
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`Case 1:14-cv-02758-PAC Document 134 Filed 01/27/17 Page 2 of 3
`Case 1:14-cv-02758-PAC Document 134 Filed 01/27/17 Page 2 of 3
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`unable to have Dr. Roberts, who has since returned to England, evaluate and respond to Dr.
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`Bym’s new opinion.
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`In Plaintiffs’ own words, when the shoe was on the other foot, this is “a belated attempt
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`to give themselves a ‘do over.” (Mr. Conlin’s Jan. 19, 2017, Letter to Court at 2.) Indeed, with
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`respect to Plaintiffs’ desire to have Dr. Bym opine as to this document produced after the end of
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`discovery, our position can be expressed by simply switching the parties in Plaintiffs’ own text:
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`[Plaintiffs] were required to seek additional time under
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`Federal Rule of Civil Procedure 6(b). It provides: “When an act
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`may or must be done within a specified time, the court may, for
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`good cause, extend the time .
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`.
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`. (B) on motion made after the time
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`has expired if the party failed to act because of excusable neglect.
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`[Plaintiffs] sought neither [Defendants’] consent nor the Court’s
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`permission.
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`[Plaintiffs] have offered no justification whatsoever for
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`their failure to comply with the Court’s Rule 26(0 scheduling
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`order regarding service of expert witness disclosures.
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`Id. at 2-3.
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`We respectfully suggest that Plaintiffs were aware that Dr. Bym cannot opine on PTX-
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`735. That is why they attempted to move PTX-735 into evidence during Dr. Roberts’ cross
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`examination by Mr. Bauer. Your Honor may recall sustaining our objection, because Dr.
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`Roberts had never seen the document. (Trial Transcript at 846: 11-19.) Here, Plaintiffs’ expert
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`Case 1:14-cv-02758-PAC Document 134 Filed 01/27/17 Page 3 of 3
`Case 1:14-cv-02758-PAC Document 134 Filed 01/27/17 Page 3 of 3
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`Dr. Bym either never saw the document until after the close of expert discovery, or, in any event,
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`never disclosed it in accordance with the scheduling order.
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`Finally, PTX-735 is not admissible, even separate and apart from Dr. Byrn’s undisclosed
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`opinions. It is a document created by Sawai, which is no longer a party to the case.
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`It is not a
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`party admission. Plaintiffs lack any foundation to introduce the document at trial.
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`Respectfully submitted,
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`W
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`Steven A. Maddox
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`cc:
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`All counsel of record
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