The Medicine Co. v. Mylan Inc., No. 11 C 1285, Slip Op. (N.D. Ill. Apr. 17, 2014) (St. Eve, J.).

Judge St. Eve granted in part and denied in part plaintiff The Medicine Company’s (“TMC”) Daubert motion seeking to exclude certain opinions of defendants (collectively “Mylan”) in this patent case involving an injectable anticoagulant that prevents blood clotting during coronary procedures.  As an initial matter, the Court held that because it would be the tried of fact, the Court was free to delay its gatekeeping function by allowing “borderline” testimony, subjecting the testimony to cross-examination and deciding later whether the testimony should be considered or excluded.  The Court noted, however, that at some point it would be required to provide “more than just conclusory statements of admissibility or inadmissibility ….”

The Court denied TMC’s motion to the extent that the expert was allowed to rely upon a statistical analysis table prepared by a second expert.  The Court already held that the second expert’s analysis was sufficiently reliable and an expert was free to rely upon research conducted by others.  Furthermore, the expert independently opined upon the analysis based upon his own experience.

The Court granted TMC’s motion to the extent that the expert sought to testify regarding how the prosecuting Patent Examiner would have acted or what she would have thought had TMC provided different information during prosecution. Those opinions were speculation and, therefore, were not sufficiently reliable.  The expert, however, was permitted to testify to facts and what the expert believes would have been material to the Patent Examiner, without opining upon what the Patent Examiner would have thought or done.