Judge Andrews Denies Without Prejudice Plaintiff’s Daubert Motion To Exclude Testimony Of Defendant’s Experts In Support Of Patent Misuse Defense

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By Memorandum Order entered by The Honorable Richard G. Andrews in Ingevity Corp. et al. v. BASF Corp., Civil Action No. 18-1391-RGA (D.Del. October 21, 2020), the Court denied Plaintiff Ingevity’s motion to exclude all or portions of the testimony of two experts of Defendant BASF on the basis of Daubert without prejudice to Plaintiff making any relevant objections to actual testimony during trial.

With respect to both experts, there were no challenges by Plaintiff to their qualifications or whether the experts testimony comported with the methods and principles of their respective subjects of expertise. Id. at *1-2. Rather, Plaintiff sought to exclude the testimony of the experts because they did not identify or state the correct legal standard for “patent misuse,” it was anticipated that the experts would offer opinions not disclosed in their reports, or would testify at trial about matters beyond of their respective areas of expertise. Id. In denying the motion without prejudice, the Court reasoned that it was not going to exclude testimony because an expert does not identify a legal standard or cannot explain legal concepts. Id.. The Court noted that is not particularly relevant to whether the expert’s testimony should be admitted. Id. Also, the Court noted that the argument that an expert is going to give opinions not disclosed in her expert report is not a Daubert argument. Id. In any case, if either expert offers opinions that were not disclosed in their report or attempts to testify about legal concepts, Plaintiff should object at that time. Id.

A copy of the Memorandum Order is attached.

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