In re HIV Antitrust Litigation

Background

The parties submitted disputes about exhibits and testimony connected to defense expert Ms. O’Malley. The order addresses whether particular materials could be admitted, published, used for impeachment, or shown as demonstratives at trial.

Rulings on Exhibits and Testimony

- Exhibit 5150: The court overruled the objections. The exhibit was, in effect, the Merchant & Gould opinion. The court noted that Ms. O’Malley discussed that opinion in her expert report, even though she largely relied on Dr. Berkland’s evaluation. - Exhibits 5435, 5436, and 8248: The court deferred ruling. The reports were not intended to be admitted as evidence, but portions might be used for impeachment or as demonstratives. - Exhibits 7858 and 7883: The court deferred ruling because the relevance of the 2022 Orange Book version and the lawsuit involving Gilead and Mylan was unclear from the materials before it. - Exhibit 7966: The court overruled the objections. The exhibit concerned litigation Teva filed against Mylan in the District of New Jersey. The court said plaintiffs could request a limiting instruction if needed to prevent jury confusion. - Exhibit 8054: The court overruled the objections. The exhibit was a declaration by Stanley M. Roberts submitted in a patent-interference proceeding before the Patent and Trademark Office. The court noted that Ms. O’Malley appeared to have referenced it in her report. - Exhibit 8075: The court had already addressed this exhibit in a prior order. Defendants confirmed that they did not intend to admit it. - Mr. Lentz’s June 9 and June 13, 2023 trial testimony: The objections were sustained in part and deferred in part. The court ruled that publishing portions of the testimony was not appropriate because the jury had been told it would not receive a trial transcript. The court deferred ruling on whether Ms. O’Malley could respond to testimony Mr. Lentz gave at trial rather than in his expert report.

Legal Opinions and Demonstratives

The court overruled objections to the Federal Circuit decision in Sanofi-Synthelabo v. Apotex, Inc., the lower-court decision in that matter, Immunex Corp. v. Sandoz Inc., Aventis Pharma Deutschland GmbH v. Lupin, Ltd., and In re Adamson. Defendants did not intend to admit those opinions into evidence. The court deferred ruling on objections to Eli Lilly & Co. v. Teva Parenteral Medicines, Inc. and Abbvie Inc. v. Mathilda & Terence Kennedy Inst. of Rheum. Trust.

The court overruled objections to DDX5.0002-.0004, DDX5.0007, DDX5.0036, DDX5.0014, DDX5.0027-.0028, DDX5.0040, DDX5.0043-.0044, DDX5.0060-.0062, and DDX5.0057-.0058. It sustained objections to DDX5.0012, .0015, .0031, and .0041; DDX5.0021 and .0026; and DDX5.0030, .0039, and .0050. Ms. O’Malley could still testify about her response to Mr. Lentz’s testimony. The court deferred ruling on DDX5.0052-.0053.

The court sustained in part and overruled in part objections to DDX5 trial stickers, allowing their use when defendants referred to exhibits that had been admitted. It overruled objections to Exhibits 660, 791, 2005, 2025, 5754, and 6470. It deferred ruling on Exhibits 5665 and 9450, 9451, 9453, and 9454. It sustained objections to PDX24.7 because its middle column was outside the scope of Ms. O’Malley’s testimony.

Effect of the Order

Judge Edward Chen’s order resolved some evidentiary objections and left others open for later decision. It was a trial-evidence ruling, not a decision on the parties’ underlying antitrust claims.