Plexxikon Inc. v. Novartis Pharmaceuticals Corporation

Background

Plexxikon moved to strike four Daubert motions filed by Novartis on June 6, 2019. Daubert motions ask the court to evaluate whether proposed expert testimony is reliable and admissible. Plexxikon argued that the motions were untimely and, alternatively, sought to strike a declaration by Novartis’s expert, Dr. Phil Baran, supporting one of the motions directed at Plexxikon’s expert, Dr. Michael L. Metzker.

Timeliness of the Daubert Motions

The court’s scheduling orders set a deadline for dispositive motions but did not set a general deadline for nondispositive motions or a specific deadline for Daubert motions. The court’s standing order stated that motions in limine could not be used to raise Daubert challenges without prior approval, while the court’s general practice was to hear Daubert motions by the dispositive-motion hearing deadline. The court found that the standing order was ambiguous about when Daubert motions had to be filed.

Because the deadline was not explicit, and because Plexxikon had sufficient time to oppose and argue the motions, the court declined to penalize Novartis. It denied Plexxikon’s motion to strike the Daubert motions on timeliness grounds.

Dr. Baran’s Declaration

The court considered Federal Rule of Civil Procedure 26, which requires expert disclosures to include a complete statement of the opinions an expert will give and permits certain rebuttal disclosures. Rule 26 also permits supplementation in appropriate circumstances. Under Rule 37, evidence not properly disclosed generally cannot be used unless the failure was substantially justified or harmless.

Novartis acknowledged that Dr. Baran’s declaration contained analysis not included in his earlier rebuttal report and that the declaration was submitted after expert discovery closed. Novartis argued that the additional material responded to information in Dr. Metzker’s reply report and deposition and was therefore proper supplementation or, alternatively, substantially justified and harmless.

The court rejected that reasoning for most of the challenged material. It found that paragraphs 33–35, 38–40, 42–46, and 50–57 added analysis that Dr. Baran could have included in his earlier rebuttal report. The court was particularly concerned that the additional material was submitted with a Daubert motion after expert discovery had ended, which would have required reopening discovery and substantially changing the case schedule.

The court treated paragraphs 41 and 47 differently because they addressed information from Dr. Metzker’s deposition that Dr. Baran could not have obtained simply by reviewing Dr. Metzker’s curriculum vitae. The court found those paragraphs to be appropriate supplementation under Rule 26(e). The order also stated that Novartis could continue relying on Dr. Baran’s rebuttal report and several portions of the declaration, and could challenge Dr. Metzker’s qualifications if he testified at trial.

Disposition

The court granted in part Plexxikon’s motion to strike Dr. Baran’s declaration, finding that the untimely disclosure of the additional information in paragraphs 33–35, 38–40, 42–46, and 50–57 was not substantially justified or harmless. The court also denied Plexxikon’s motion to strike Novartis’s Daubert motions based on untimeliness. The order was signed by United States District Judge Haywood S. Gilliam, Jr.