ChemImage Corporation v. Johnson & Johnson
- Jesse Furman
- 1:24-cv-02646
- U.S. District Court · Southern District of New York
- 2
In ChemImage v. Johnson & Johnson, Judge Furman denied Motions 1–4, conditionally denied Motion 3, and granted Motion 5.
ChemImage Corporation and the defendants, Johnson & Johnson and Ethicon, Inc. The defendants must make Rocco De Bernardis available for a pretrial deposition and pay its reasonable costs, while their use of Adam Saltman’s deposition testimony is limited if he testifies at trial.
What happened
ChemImage Corporation sued Johnson & Johnson and Ethicon, Inc., and a bench trial was scheduled to begin on March 17, 2025. Before trial, ChemImage filed five motions about what evidence the defendants could present.
Judge Furman denied Motions 1 and 2 because he found no need to decide those disputes before trial. He also denied Motions 3 and 4. Motion 3 was denied on the condition that Rocco De Bernardis be available for a deposition before trial; the defendants must pay the reasonable deposition costs, but not attorney’s fees.
The court granted Motion 5, barring the defendants from using Adam Saltman’s deposition testimony in their main trial presentation if he appears as a trial witness, except for impeachment. The opinion was issued by Judge Jesse M. Furman.
The detailed version
- ChemImage Corporation v. Johnson & Johnson · No. 1:24-cv-02646
- Jesse Furman
- Mar. 5, 2025
Background
ChemImage Corporation brought this case against Johnson & Johnson and Ethicon, Inc. A bench trial—a trial decided by a judge rather than a jury—was scheduled to begin on March 17, 2025. Before trial, ChemImage filed five motions in limine, which are requests to decide in advance whether particular evidence or arguments may be presented.
Rulings on Motions 1–4
Motion 1
ChemImage sought to bar evidence and arguments about alleged breaches that were not identified in the March 6, 2023 termination letter. The court denied the motion because it found no need to decide before trial whether, or to what extent, it should consider the defendants’ evidence and arguments about those alleged breaches.
Motion 2
ChemImage sought to bar testimony from the defendants’ rebuttal experts. The court stated that rebuttal reports are limited to the same subject matter identified by another party and that it would disregard improper rebuttal testimony when ruling on the merits. The court nevertheless denied the motion because it found no need to resolve the parties’ arguments before trial.
Motion 3
ChemImage sought to bar testimony from Rocco De Bernardis because the defendants had not listed him in their required disclosures under Federal Rule of Civil Procedure 26. The court found that the defendants gave no justification for the failure to disclose him, but denied the motion because ChemImage could not show prejudice in this bench trial, where witnesses’ direct testimony had been submitted by declaration. The denial was conditional: De Bernardis must be made available for a deposition before trial on a date reasonably selected by ChemImage’s counsel. Because of the Rule 26 violation, the defendants must pay the reasonable costs of that deposition, excluding attorney’s fees.
Motion 4
ChemImage sought to bar certain testimony from Joseph Corrigan. The court denied the motion, substantially for the reasons stated in the defendants’ opposition.
Motion 5 and Disposition
ChemImage sought to prevent the defendants from introducing Adam Saltman’s deposition testimony. The court agreed that deposition testimony is generally a substitute for live testimony when the witness cannot appear in person. It also rejected the defendants’ argument that Saltman’s testimony was excluded from the hearsay rule as a statement of an opposing party, because Saltman was not a ChemImage employee when he was deposed.
The court therefore granted Motion 5. If Saltman appears as a trial witness, the defendants may not use his deposition testimony in their case-in-chief, except for impeachment purposes. The Clerk of Court was directed to terminate the docket entry for ChemImage’s five motions, ECF No. 126.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.