United States, et al v. Cytogel Pharma, LLC, No. 2:2016cv13987 - Document 404 (E.D. La. 2018)
Court Description: ORDER AND REASONS - IT IS ORDERED that the 277 Motion in Limine to Limit the Expert Testimony of Plaintiffs' Expert Dr. Jane V. Aldrich, filed by Defendant Cytogel Pharma, LLC, be and hereby is GRANTED. Signed by Judge Susie Morgan. (bwn)
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United States, et al v. Cytogel Pharma, LLC Doc. 404 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A TH E U N ITED S TATES an d TH E AD MIN ISTRATORS OF TH E TU LAN E ED U CATION AL FU N D , Plain tiffs CIVIL D OCKET VERSU S N O. 16 -13 9 8 7 CYTOGEL PH ARMA, LLC, D e fe n d an t SECTION : “E” ORD ER AN D REAS ON S Before the Court is a Motion in Lim ine to Lim it the Expert Testim ony of Plaintiffs’ Expert Dr. J ane V. Aldrich, filed by Defendant Cytogel Pharm a, LLC. 1 Plaintiffs the United States of Am erica and the Adm inistrators of the Tulane Educational Fund (“Tulane”) and Counterclaim -Defendant Dr. J am es E. Zadina oppose in part. 2 For the reasons that follow, the m otion is GRAN TED . BACKGROU N D In the 1990 s, Dr. Zadina and his colleagues at Tulane University researched an d developed opioid com pounds related to endom orphins, which are opioid peptides found naturally in the hum an body. 3 Based on their research, Tulane obtained two patents, U.S. Patent Nos. 5,885,958 (“the ’958 Patent”) and 6,30 3,578 (“the ’578 Patent”), claim ing these com pounds. 4 On Decem ber 1, 20 0 3, Tulane licensed the patents to Cytogel. 5 After Tulane and Cytogel signed a Licensing Agreem ent, Dr. Zadina, who was an em ployee of Tulane and the Departm ent of Veterans Affairs (“VA”), began perform ing 1 R. Doc. 277. R. Doc. 327. 3 R. Doc. 1 at 4– 5, ¶ 14– 16; R. Doc. 220 at 9, ¶ 16. 4 R. Doc. 1 at 5– 6, ¶ 17– 19; R. Doc. 220 at 9, ¶ 16. 5 R. Doc. 1 at 6, ¶ 20 ; R. Doc. 220 at 9, ¶ 17. 2 1 Dockets.Justia.com consulting work for Cytogel pursuant to a Consulting Agreem ent. 6 Dr. Zadina advised Cytogel on the developm ent of Cyt-10 10 , a synthetic opioid peptide covered by the ’958 and ’58 7 Patents, for com m ercial use as an analgesic. 7 Cytogel alleges Dr. Zadin a accessed confidential data and inform ation relating to Cyt-10 10 and used this inform ation to further his own secret work on the developm ent of com pounds that would com pete directly with Cyt-10 10 . 8 From Septem ber 8 , 20 10 onward, Cytogel “disengaged from ” Dr. Zadina. 9 On August 22, 20 12, Dr. Zadina and his colleague at Tulane Dr. Laszlo Hackler form ally assigned to Tulane and the VA their ownership rights to a patent application they filed for a group of synthetic opioid com pounds. 10 On May 6, 20 14, the resulting patent, U.S. Patent No. 8,716,436 B2 (“the ’436 Patent”), issued. 11 Cytogel alleges the com pound claim ed in the ’436 Patent is a “m odified version of Cyt-10 10 an d plainly design ed to com pete with [Cyt-10 10 ] as a potential pharm aceutical treatm ent.”12 On August 19, 20 16, the United States and Tulane filed suit against Cytogel for declaratory judgm ents of ownership and inventorship of the ’436 Patent. 13 On Septem ber 7, 20 16, Cytogel filed thirteen counterclaim s against Plaintiffs Tulane and the United States, joining Dr. Zadina as Counterclaim -Defendant. 14 On J uly 23, 20 18, Cytogel filed its Second Am ended and Restated Counterclaim s, which included a fourteenth counterclaim to correct the inventorship of the ’436 Patent. 15 6 R. Doc. 1 at 6– 9, ¶ 24– 36; R. Doc. 220 at 10 , ¶ 19. R. Doc. 1 at 5, 6, ¶ 16, 20 – 21; R. Doc. 220 at 13, ¶ 32. 8 Id. at 22, ¶ 61. 9 R. Doc. 233-1 at 9, ¶ 19; R. Doc. 285 at 7, ¶ 19. 10 R. Doc. 1 at 12, ¶ 47; R. Doc. 220 at 20 , ¶ 55. 11 R. Doc. 233-1 at 9, ¶ 20 ; R. Doc. 285 at 7, ¶ 20 . 12 R. Doc. 220 at 23, ¶ 64. 13 R. Doc. 1. 14 R. Doc. 6. 15 R. Doc. 220 . 7 2 Dr. Aldrich prepared two expert reports for Plaintiffs. One addresses “how knowledge of the solubility analgesic properties, and other aspects of the endom orphin and en dom orphin-analog com pounds of [the ’958 and ’578 Patents], nam ely through research of the CYT-10 10 com pound, would, in [Dr Aldrich’s] opinion, not inform the design of the endom orphin analogs of the ’436 Patent.”16 The other is a rebuttal report to the report of Cytogel’s expert Dr. Stephen G. Davies, who prepared a report on ownership and inventorship of the ’436 Patent and Infringem ent of the ’958 and ’578 Patents. 17 Cytogel filed the instant m otion on Septem ber 10 , 20 18. 18 Cytogel seeks to prevent Dr. Aldrich from testifying at trial on topics of inventorship and patent infringem ent. 19 Tulane, Dr. Zadina, and the United States do not oppose this portion of the m otion. 20 Cytogel also seeks to prevent Dr. Aldrich from testifying as to her experiences with collaboration on patents. 21 Tulane, Dr. Zadina, and the United States oppose this portion of the m otion. 22 On Septem ber 20 , 20 18, the Court, on its own m otion, ordered that there be a separate trial for Count 2 of the Com plaint and Count 14 of Cytogel’s Second Am ended and Restated Counterclaim s, which involve in ventorship of the ’436 Patent. 23 LAW AN D AN ALYSIS Federal Rule of Evidence 70 2 perm its an expert witness with “scientific, technical or other specialized knowledge” to testify if such testim ony “will help the trier of fact to 16 R. Doc. 227-2 at 3, ¶ 2. R. Doc. 277-3. 18 R. Doc. 277. 19 R. Doc. 277-1. 20 R. Doc. 327 at 2– 3. 21 R. Doc. 277-1 at 6– 7. 22 R. Doc. 327 at 3– 5. 23 R. Doc. 298 . 17 3 understand the eviden ce or to determ ine a fact in issue,” so long as (1) “the testim ony is based upon sufficient facts or data,” (2) “the testim ony is the product of reliable principles and m ethods,” and (3) “the expert has reliably applied the prin ciples and m ethods to the facts of the case.”24 Furtherm ore, Federal Rule of Eviden ce 70 3 provides: “An expert m ay base an opinion on facts or data in the case that the expert has been m ade aware of or personally observed.”25 Rule 70 3 continues: If experts in the particular field would reasonably rely on those kinds of facts or data in form ing an opinion on the subject, they need not be adm issible for the opinion to be adm itted. But if the facts or data would otherwise be inadm issible, the proponent of the opinion m ay disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. 26 As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight of the eviden ce rather than its adm issibility, and should be left for the finder of fact. 27 “Unless wholly unreliable, the data on which the expert relies goes to the weight and not the adm issibility of the expert opinion.”28 Thus, “[v]igorous crossexam ination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible eviden ce.”29 The Court is not concerned with whether the opinion is correct, but whether the preponderan ce of the eviden ce establishes that the opinion is reliable. 30 “It is the role of the adversarial system , not the court, to highlight weak eviden ce.”31 24 F ED. R. E VID. 70 2. F ED. R. E VID. 70 3. 26 Id. 27 See Prim rose Operating Co. v. N at’l Am . Ins. Co., 38 2 F.3d 546, 562 (5th Cir. 20 0 4). 28 Rosiere v. W ood Tow ing, LLC, No. 0 7-1265, 20 0 9 WL 982659, at *1 (E.D. La. Apr. 8, 20 0 9) (citing United States v. 14.38 Acres of Land, 80 F.3d 10 74, 10 77 (5th Cir. 1996)) (em phasis added); W olfe v. McN eil-PPC, Inc., No. 0 7-348, 20 11 WL 167380 5, at *6 (E.D. Pa. May 4, 20 11). 29 Pipitone, 288 F.3d at 250 (quoting Daubert, 50 9 U.S. at 596) (internal quotation m arks om itted). 30 See Johnson v. Arkem a, In c., 685 F.3d 452, 459 (5th Cir. 20 12). 31 Prim rose, 38 2 F.3d at 562. 25 4 Cytogel m oves to keep Dr. Aldrich from testifying at trial on patent inventorship and patent infringem ent. 32 As to inventorship, Cytogel states Dr. Aldrich’s in itial report “appeared to approach the issue.”33 As to infringem ent, Cytogel states “Dr. Aldrich had an opportunity to rebut” the expert opin ion of Cytogel’s expert Dr. Stephen G. Davies. 34 Tulane, Dr. Zadina, and the United States do not oppose this portion of the m otion. 35 As a result, Dr. Aldrich will be precluded from addressing issues of patent inventorship and infringem ent at trial. Cytogel m oves to keep Dr. Aldrich from testifying about collaboration in patent invention. 36 In her rebuttal expert report, Dr. Aldrich notes her “experience of working in a collaborative environm ent when developing new com pounds” and states, based on sim ilar experiences, that she “see[s] nothing to indicate that Dr. Zadina’s testim ony that he collaborated with Dr. Hackler is incorrect.”37 Cytogel argues this testim ony is “anecdotal” and neither reliable nor relevant. 38 Tulane, Dr. Zadina, and the United States oppose this portion of the m otion, arguing the testim ony “assists in qualifying Dr. Aldrich as an expert, and would also assist the jury in understanding generally how research . . . typically proceeds in Dr. Aldrich’s field.”39 The Court finds this testim ony is not necessary to qualify Dr. Aldrich as an expert and would not be helpful to the jury at the first trial in 32 R. Doc. 277-1. Id. at 5. 34 Id. at 9. 35 R. Doc. 327 at 2– 3. 36 R. Doc. 277-1 at 6– 7. 37 R. Doc. 277-3 at 7, ¶ 7– 8. 38 R. Doc. 277-1 at 6– 7. 39 R. Doc. 327 at 4. 33 5 this m atter. As a result, Cytogel’s m otion is granted. Dr. Aldrich’s testim ony on collaboration in patent invention will be excluded. 40 CON CLU SION For the foregoing reasons, IT IS ORD ERED that the Motion in Lim ine to Lim it the Expert Testim ony of Plaintiffs’ Expert Dr. J ane V. Aldrich, filed by Defendant Cytogel Pharm a, LLC, be and hereby is GRAN TED . N e w Orle a n s , Lo u is ian a, th is 3 1s t d ay o f Octo be r, 2 0 18 . ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 40 To be clear, Dr. Aldrich m ay not testify at the first trial in this m atter, on Count 1 of the Com plaint and Counts 1– 8 and 10 of Cytogel’s Second Am ended and Restated Counterclaim s, regarding whether Dr. Zadina’s testim ony that he collaborated with Dr. Hackler is correct. 6
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