Judge Andrews tentatively admits expert deposition testimony under Rule 32.

Judge Richard G. Andrews recently reconsidered a ruling made at trial that the designated deposition testimony of a settled-out defendant’s expert was inadmissible hearsay.  Sanofi v. Glenmark Generics Inc. USA, C.A. No. 14-264-RGA (D. Del. June 17, 2016).  The Court explained that there was nothing unusual about the settlement that would suggest that it was aimed at procuring the expert’s absence from trial, and that the testimony therefore should have been admitted at least under the Rule 32 analysis.  The Court expressed doubt, though, about the admissibility of the testimony under Rule 403, in part because anything helpful in the testimony would likely be “cumulative to whatever [the plaintiff’s own] experts testified to at trial.”  However, because the Court’s ruling not to admit the testimony at trial resulted in an undeveloped record for purposes of the Rule 403 analysis, Judge Andrews decided that “the better course at this point is to tentatively admit the testimony. . . .  The post-trial briefing will reveal whether it has any significant probative value.  If it does not, I will strike it from the record.  If it does, I will consider it.”

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