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Plaintiff Precluded from Using Deposition Testimony of Defense Expert Where Plaintiff Procured the Absence of the Expert

Novartis sought to use the deposition testimony of defendant’s expert at trial under Fed.R.Civ.P. 32(a)(4)(B). As explained by the district court, “the Rule provides that a party may use the deposition of a witness for any purpose” if “the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition.” FED. R. Civ. P. 32(a)(4)(B). “[A] conclusion that a party has procured the absence of a witness requires a finding that the party ‘actively took steps to keep the deponents from setting foot in the courtroom,’ and ‘procuring absence and doing nothing to facilitate presence are quite different things.'” Forrester Envtl. Servs., Inc. v. Wheelabrator Techs., Inc., 2012 WL 1161125, at *2 (D.N.H. Apr. 6, 2012) (quoting Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 (1st Cir. 1988)).

The district court then noted that Dr. Kibbe was an expert witness on obviousness for the defense in a case that went to trial in August 2013. The defendant here, Par, had its case stayed on the morning of trial because Par and Novartis had purportedly reached a settlement agreement. The trial against another defendant then proceeded without Par’s presence, and Dr. Kibbe testified as scheduled.

When the settlement between Novartis and Par was not finalized, Novartis wanted to use Dr. Kibbe’s deposition testimony in its upcoming trial against Par. As explained by the district court, Dr. Kibbe will not be present at that trial because obviousness is not at issue.

The district court then concluded that Novartis had essentially procured Dr. Kibbe’s absence. “Novartis agreed to, and then unilaterally backed out of, its settlement agreement with Par. This not only caused Par to be absent from the August trial where the issue of obviousness was litigated, but it caused Dr. Kibbe to be absent from the upcoming May trial because obviousness will not be re-litigated. Under these admittedly rare and unusual circumstances, the Court might conclude that Novartis “actively took steps” to keep Dr. Kibbe “from setting foot in the courtroom” in violation of Rule 32(a)(4)(B). Par, however, has not advanced this argument.”

The district court also concluded that the deposition testimony would be duplicative and found that admitting the testimony would be unfairly prejudicial to Par. “In addition, admitting the deposition testimony would be unfairly prejudicial to Par. Par had no motive to question Dr. Kibbe at his deposition regarding the topics Novartis designated because Par believed it would be present at trial, where Dr. Kibbe would provide live testimony. Dr. Kibbe will not be present at the upcoming trial, and he will not have an opportunity to explain those previous statements. Therefore, permitting Novartis to rely on Dr. Kibbe’s deposition testimony would unduly prejudice Par.”

Accordingly, the district court excluded the deposition testimony of Dr. Kibbe.

Novartis Pharmaceuticals Corporation v. Par Pharmaceutical, Inc., Case No. 11-1077-RGA (D. Del. Apr. 2014)

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