Prior Daubert Orders And Discovery Lessons Out Of N.D. Cal.

• Published date: 08 February 2022
• Subject Matter: Intellectual Property, Food, Drugs, Healthcare, Life Sciences, Patent, Biotechnology & Nanotechnology
• Law Firm: Mintz
• Author: Mr Peter Snell and Robert C. Sweeney

A recent order from the Northern District of California in Edwards Lifesciences Corp. v. Meril Life Sciences Pvt. Ltd., No. 19-cv-06593 (Jan. 27, 2022) ("Edwards"), provides guidance regarding the ability (or inability) to use a prior Daubert ruling to discredit an expert witness at trial when such a ruling arose within the context of a different case. In addition, the order highlights a pitfall that can arise when an opposing party produces deficient damages-related discovery but is not pressed to supplement its discovery through a motion to compel.

Edwards Lifesciences Corporation ("ELC") filed a motion in limine in which it sought to exclude at trial any reference to a prior Daubert order concerning ECL's damages expert that was issued by Judge Alsup in a separate action (the "Alsup Order"). Meril Life Sciences ("Meril") opposed, arguing that the Alsup Order is "highly probative" for impeachment, and to establish both bias and the limited weight the expert's testimony should be given. Meril acknowledged that the Alsup Order should not be admitted into evidence.

Judge Haywood S. Gilliam, Jr. "tentatively" granted the motion, relying on cases including BladeRoom Grp., Ltd. v. Facebook, Inc., No. 5:15-CV-01370-EJD, (N.D. Cal. Mar. 23, 2018), and Est. of Thompson v. Kawasaki Heavy Indus., Ltd., 933 F. Supp. 2d 1111, 1152 (N.D. Iowa 2013). He explained that because Daubert rulings come from judges, juries may give them undue weight. Thus, allowing parties to reference them invites wasteful and confusing "mini-trials" about unrelated prior cases. Judge Gilliam's grant of the motion, however, was without prejudice and hinted at circumstances under which Meril might nonetheless be permitted to confront ELC's expert with the Alsup Order at trial. Namely, Judge Gilliam invited Meril to re-raise its arguments in favor of referencing the Alsup Order in the jury's presence depending on how ELC's expert ultimately testifies at trial on the topics of his credibility or prior litigation experience.

This ruling indicates that whether an expert may be confronted with a prior Daubert order may depend on whether the expert's direct testimony opens the door to such an attack. Thus, those seeking to thwart such an attack should be ready to distinguish the prior order from the facts and circumstances of the instant case, and take care to avoid direct examination that...